# Official Journal C 273/6 No

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 273 |
| | |
| English edition | Information and Notices | Volume 476 November 2004 |

ISSN 1725-2423

Official Journal

of the European Union

C 273

English edition

Information and Notices

Volume 476 November 2004

---

| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2004/C 273/1 | Judgment of the Court (Second Chamber) of 16 September 2004 in Case C-227/01: Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 85/337/EEC — Assessment of the effects of certain public and private projects on the environment — Incorrect implementation — Project for a Valencia-Tarragona railway line, Las Palmas-Oropesa section) | 1 |
| 2004/C 273/2 | Judgment of the Court (Second Chamber) of 16 September 2004 in Case C-465/01: Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Freedom of movement for workers — Nationals of the Union or the EEA — Nationals of a non-member State associated with the Community by way of an agreement — Eligibility for election to workers' chambers and works councils — Principle of non-discrimination as regards conditions of work) | 1 |
| 2004/C 273/3 | Judgment of the Court (Third Chamber) of 16 September 2004 in Case C-248/02: Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Pollution and nuisance — Sol protection — Sewage sludge — Forwarding of incomplete information for the years 1995 to 1997 — Articles 10 and 17 of Directive 86/278/EEC) | 2 |
| 2004/C 273/4 | Judgment of the Court (Second Chamber) of 16 September 2004 in Case C-329/02 P: SAT.1 SatellitenFernsehen GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Appeals — Community trade mark — Absolute grounds for refusal to register — Article 7(1)(b) and (c) of Regulation (EC) No 40/94 — Sat.2) | 3 |
| 2004/C 273/5 | Judgment of the Court (Third Chamber) of 16 September 2004 in Case C-366/02 (reference for a preliminary ruling from the Verwaltungsgericht Halle): Gerd Gschoßmann v Amt für Landwirtschaft und Flurneuordnung Süd (Common agricultural policy — Regulation (EEC) No 1765/92 and (EC) No 1251/1999 — Support system for producers of arable crops — Compensatory payments for areas down to arable crops and subject to set-aside — Exclusion for land under permanent crops — Definition) | 3 |
| 2004/C 273/6 | Judgment of the Court (Second Chamber) of 16 September 2004 in Case C-382/02 (reference for a preliminary ruling from the Vestre Landsret): Cimber Air A/S v Skatteministeriet (Sixth VAT Directive — Article 15(6), (7) and (9) — Exemption of exports outside the Community — Meaning of aircraft used by airlines operating chiefly on international routes — Exemption for fuelling and provisioning of domestic flights) | 4 |
| 2004/C 273/7 | Judgment of the Court (Second Chamber) of 14 September 2004 in Case C-385/02: Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil its obligations — Directive 93/37/EEC — Public works contracts — Negotiated procedure without prior publication of a contract notice) | 4 |
| 2004/C 273/8 | Judgment of the Court (Second Chamber) of 16 September 2004 in Case C-386/02 (reference for a preliminary ruling from the Arbeits- und Sozialgericht Wien): Josef Baldinger v Pensionsversicherungsanstalt der Arbeiter (Free movement of persons — Compensation for ex-prisoners of war — Requirement to hold the nationality of the Member State concerned at the time of submission of the request for compensation) | 5 |
| 2004/C 273/9 | Judgment of the Court (Third Chamber) of 16 September 2004 in Case C-396/02 (reference for a preliminary ruling from the Gerechtshof te Amsterdam): DFDS BV v Inspecteur der Belastingdienst — Douanedistrict Rotterdam (Common Customs Tariff — Combined Nomenclature — Tariff classification — Subheading 8704 10 — Minitrac for the transport and dumping of sand, earth and stones with a sophisticated tipping system) | 5 |
| 2004/C 273/0 | Judgment of the Court (Second Chamber) of 16 September 2004 in Case C-400/02 (reference for a preliminary ruling from the Bundesarbeitsgericht): Gerard Merida v Bundesrepublik Deutschland (Article 39 EC — Collective agreement — Supplementary temporary allowance in favour of former civilian employees of the allied forces in Germany — Frontier workers — Determination of the basis of calculation of that allowance — Notional taking into account of German tax on wages) | 6 |
| 2004/C 273/1 | Judgment of the Court (Second Chamber) of 16 September 2004 in Case C-404/02 (reference for a preliminary ruling from the High Court of Justice of England and Wales (Chancery Division): Nichols plc v Registrar of Trade Marks (Trade marks — Directive 89/104/EEC — Article 3(1)(b) — Trade mark comprising a common surname — Distinctive character — Impact of Article 6(1)(a) on assessment) | 6 |
| 2004/C 273/2 | Judgment of the Court (Second Chamber) of 14 September 2004 in Case C-411/02: Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Incorrect transposition — Directive 98/10/EC — Telecommunications — Concepts of a basic level of itemised billing’ and still more detailed presentation) | 7 |
| 2004/C 273/3 | Judgment of the Court (First Chamber) of 16 September 2004 in Case C-28/03 (reference for a preliminary ruling from the Simvoulio tis Epikratias): Epikouriko Kefalaio v Ipourgos Anaptixis (Insurance — Articles 15 and 16 of First Directive 73/239/EEC — Articles 17 and 18 of First Directive 79/267/EEC — Proceedings for the liquidation of an insurance undertaking following the withdrawal of authorisation — Respective priority of salary claims and insurance claims) | 7 |
| 2004/C 273/4 | Judgment of the Court (Fifth Chamber) of 9 September 2004 in Case C-81/03: Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil its obligations — Articles 43 EC and 49 EC — Paramedical professions — Exercise on an independent basis) | 8 |
| 2004/C 273/5 | Judgment of the Court (Second Chamber) of 14 September 2004 in Case C-168/03: Commission of the European Communities v Kingdom of Spain (Failure by a Member State to fulfil its obligations — Directives 89/665/EEC and 95/63/EC — Incomplete transposition — Additional adjustment period) | 8 |
| 2004/C 273/6 | Judgment of the Court (Fifth Chamber) of 16 September 2004 in Case C-404/03 (reference for a preliminary ruling from the Tribunal de grande instance du Mans): Olivier Dupuy and Hervé Rouvre (Dangerous substances or preparations — Siccatives containing lead — Prohibition of placing on the market — Directives 76/769/CEE and 94/60/CE) | 9 |
| 2004/C 273/7 | Judgment of the Court (Fourth Chamber) of 16 September 2004 in Case C-423/03: Commission of the European Communities v Republic of Finland (Failure of a Member State to fulfil obligations — Non-transposition — Directive 2001/18/EC) | 9 |
| 2004/C 273/8 | Order of the Court (Sixth Chamber) of 9 July 2004 in Case C-116/03 P: Augusto Fichtner v Commission of the European Communities (Appeals — Officials — Disciplinary measure — Removal from post with entitlement to old-age pension — Pursuit of outside activities without prior authorisation) | 9 |
| 2004/C 273/9 | Case C-338/04: Reference for a preliminary ruling by the Tribunale di Larino — Sezione Distaccata di Termoli — by order of that court of 8 July 2004 in criminal proceedings against Massimiliano Placanica | 10 |
| 2004/C 273/0 | Case C-345/04: Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 26 May 2004 in the case of Centro Equestro da Leziria Grande LDA against Bundesamt für Finanzen | 10 |
| 2004/C 273/1 | Case C-347/04: Reference for a preliminary ruling by the Finanzgericht Köln by order of that court of 15 July 2004 in the case of REWE Zentralfinanz e.G., as universal legal successor of ITS Reisen GmbH against Finanzamt Köln-Mitte | 10 |
| 2004/C 273/2 | Case C-348/04: Reference for a preliminary ruling by the Court of Appeal (England & Wales) (Civil Division), by order of that court dated 17 June 2004, in the case of Boehringer Ingelheim KG and others against Swingward Ltd and another | 11 |
| 2004/C 273/3 | Case C-356/04: Reference for a preliminary ruling by the Rechtbank van Koophandel te Brussel by decision of that court of 29 July 2004 in the case of Lidl Belgium GmbH & Co KG against NV Etablissementen Franz Colruyt | 12 |
| 2004/C 273/4 | Case C-358/04: Reference for a preliminary ruling by the Tribunale di Vicenza, Sezione Distaccata di Schio by order of that court of 2 August 2004 in the case of Caseificio Valdagnese against Regione Veneto | 13 |
| 2004/C 273/5 | Case C-362/04: Reference for a preliminary ruling by the Simvoulio tis Epikratias – by order of that court of 29 July 2004 in the case of Mikaniki AE against the Ministry of Culture and against the intervening joint venture entitled J & P – AVAX AE – ARXITEX ATE – YETEM AE | 13 |
| 2004/C 273/6 | Case C-368/04: Reference for a preliminary ruling by the Verwaltungsgerichtshof, Austria, by decision of that court of 12 August 2004 in the case of (1) Transalpine Ölleitung in Österreich GmbH, (2) Planai-Hochwurzen-Bahnen GmbH, (3) Gerlitzen-Kanzelbahn-Touristik Gesellschaft mbH & CO KG, against (1) the Finanzlandesdirektion für Tirol, (2) the Finanzlandesdirektion für Steiermark, and (3) the Finanzlandesdirektion für Kärnten | 13 |
| 2004/C 273/7 | Case C-369/04: Reference for a preliminary ruling by the VAT and Duties Tribunals, London Tribunal Centre, by direction of that court dated 24 August 2004, in the case of Hutchison 3G UK Ltd, mmO2 plc, Orange 3G Ltd, T-Mobile (UK) Ltd, Vodafone Group Services Ltd against Commissioners of Customs and Excise | 14 |
| 2004/C 273/8 | Case C-371/04: Action brought on 30 August 2004 by the Commission of the European Communities against the Italian Republic | 15 |
| 2004/C 273/9 | Case C-372/04: Reference for a preliminary ruling by the Court of Appeal (England & Wales) (Civil Division), by order of that court dated 12 July 2004, in the case of The Queen on the application of Yvonne Watts against 1) Bedford Primary Care Trust 2) Secretary of State for Health | 15 |
| 2004/C 273/0 | Case C-374/04: Reference for a preliminary ruling by the High Court of Justice (England & Wales) (Chancery Division), by order of that court dated 25 August 2004, in the case of Test Claimants in Class IV of the ACT Group Litigation against Commissioners of Inland Revenue | 17 |
| 2004/C 273/1 | Case C-384/04: Reference for a preliminary ruling by the Court of Appeal (England and Wales) (Civil Division), by order of that court dated 30 July 2004, in the case of (1) Commissioners of Customs and Excise (2) H.M. Attorney-General against Federation of Technological Industries and 53 others | 18 |
| 2004/C 273/2 | Case C-389/04: Action brought on 10 September 2004 by the Commission of the European Communities against the French Republic | 19 |
| 2004/C 273/3 | Case C-390/04: Reference for a preliminary ruling by the Regeringsrätten (Supreme Administrative Court) by decision of that court of 7 September 2004 in the case of GöteborgsOperan AB v Skatteverket | 19 |
| 2004/C 273/4 | Case C-391/04: Reference for a preliminary ruling by the Simvoulio tis Epikratias by order of that court of 6 July 2004 in the case of Ipourgos Ikonomikon and Proistamenos D.O.I. Amfissas against Charilaos Georgakis | 20 |
| 2004/C 273/5 | Case C-392/04: Reference for a preliminary ruling by the Bundesverwaltungsgericht by order of that court of 7 July 2004 in the case i-21-germany GmbH against the Federal Republic of Germany | 20 |
| 2004/C 273/6 | Case C-393/04: Reference for a preliminary ruling by the Cour d'appel de Liège (Ninth Chamber) by decision of that court of 15 September 2004 in the case of Air Liquide Industries Belgium SA against Ville de Seraing | 21 |
| 2004/C 273/7 | Case C-394/04: Reference for a preliminary ruling by the Simvoulio tis Epikratias by order of that court of 16 June 2004 in the case of Diagnostikon kai Therapeftikon Kentron Athinon – Igia A.E. against Ipourgos Ikonomikon | 21 |
| 2004/C 273/8 | Case C-395/04: Reference for a preliminary ruling by the Simvoulio tis Epikratias by order of that court of 16 June 2004 in the case of Diagnostikon kai Therapeftikon Kentron Athinon – Igia A.E. against Ipourgos Ikonomikon | 21 |
| 2004/C 273/9 | Case C-396/04: Action brought on 20 September 2004 by the Commission of the European Communities against the Republic of Finland | 21 |
| 2004/C 273/0 | Case C-399/04: Action brought on 21 September 2004 by the Commission of the European Communities against the French Republic | 22 |
| 2004/C 273/1 | Case C-400/04: Action brought on 21 September 2004 by the Commission of the European Communities against the Kingdom of the Netherlands | 22 |
| 2004/C 273/2 | Case C-401/04: Action brought on 22 September 2004 by the Commission of the European Communities against the Kingdom of Sweden | 23 |
| 2004/C 273/3 | Case C-402/04: Action brought on 22 September 2004 by the Commission of the European Communities against the French Republic | 23 |
| 2004/C 273/4 | Case C-404/04 P: Appeal brought on 22 September 2004 by Technische Glaswerke Ilmenau GmbH against the judgment delivered on 8 July 2004 by the Fifth Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-198/01 between Technische Glaswerke Ilmenau GmbH and the Commission of the European Communities, supported by Schott Glas | 23 |
| 2004/C 273/5 | Case C-411/04 P: Appeal brought on 23 September 2004 by Mannesmannröhren-Werke AG against the judgment delivered on 8 July 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-44/00 between Mannesmannröhren-Werke AG and the Commission of the European Communities | 24 |
| 2004/C 273/6 | Case C-413/04: Action brought on 27 September 2004 by the European Parliament against the Council of the European Union | 25 |
| 2004/C 273/7 | Case C-414/04: Action brought on 27 September 2004 by the European Parliament against the Council of the European Union | 26 |
| 2004/C 273/8 | Removal from the register of Case C-13/02 | 26 |
| 2004/C 273/9 | Removal from the register of Case C-81/02 | 26 |
| 2004/C 273/0 | Removal from the register of Case C-197/02 | 26 |
| 2004/C 273/1 | Removal from the register of Case C-361/03 P | 27 |
| 2004/C 273/2 | Removal from the register of Case C-457/03 | 27 |
| 2004/C 273/3 | Removal from the register of Case C-554/03 | 27 |
| 2004/C 273/4 | Removal from the register of Case C-17/04 | 27 |
| | COURT OF FIRST INSTANCE |
| 2004/C 273/5 | Case T-168/04: Action brought on 14 May 2004 by L&D S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 28 |
| 2004/C 273/6 | Case T-261/04: Action brought on 21 June 2004 by Alain Crespinet against the Commission of the European Communities | 28 |
| 2004/C 273/7 | Case T-272/04: Action brought on 6 July 2004 by Jean-Paul Keppenne against the Commission of the European Communities | 29 |
| 2004/C 273/8 | Case T-291/04: Action brought on 16 July 2004 by Enviro Tech Europe, Ltd., and Enviro Tech International, Inc., against the Commission of the European Communities | 29 |
| 2004/C 273/9 | Case T-318/04: Action brought on 4 August 2004 by Vladimir Boucek against the Commission of the European Communities | 30 |
| 2004/C 273/0 | Case T-320/04: Action brought on 30 July 2004 by Triantafyllia Dionyssopoulou against the Council of the European Union | 30 |
| 2004/C 273/1 | Case T-325/04: Action brought on 5 August 2004 by Citicorp against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 31 |
| 2004/C 273/2 | Case T-326/04: Action brought on 6 August 2004 by the Commission of the European Communities against Silicon and Software Systems Limited | 32 |
| 2004/C 273/3 | Case T-327/04: Action brought on 3 August 2004 by Syndicat National de l'Industrie des Viandes (SNIV) against the Commission of the European Communities | 32 |
| 2004/C 273/4 | Case T-328/04: Action brought on 3 August 2004 by Günter Wilms against the Commission of the European Communities | 33 |
| 2004/C 273/5 | Case T-334/04: Action brought on 11 August 2004 by House of Donuts International against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 34 |
| 2004/C 273/6 | Case T-335/04: Action brought on 11 August 2004 by Viz Stal and Duferco Commerciale SpA against the Council of the European Union | 34 |
| 2004/C 273/7 | Case T-337/04: Action brought on 29 July 2004 by Athanasios Pitsiorlas against the Council of the European Union and the European Central Bank | 35 |
| 2004/C 273/8 | Case T-353/04: Action brought on 23 August 2004 by Ontex N.V. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 36 |
| 2004/C 273/9 | Case T-356/04: Action brought on 27 August 2004 by SmithKline Beecham p.l.c. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 36 |
| 2004/C 273/0 | Case T-362/04: Action brought on 3 September 2004 by Leonid Minin against the Commission of the European Communities | 37 |
| 2004/C 273/1 | Case T-381/04: Action brought on 23 September 2004 by the Italian Republic against the Commission of the European Communities | 38 |
| 2004/C 273/2 | Removal from the Register of Case T-118/04 R | 38 |
| 2004/C 273/3 | Removal from the Register of Case T-134/04 R | 38 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2004/C 273/1

Judgment of the Court (Second Chamber) of 16 September 2004 in Case C-227/01: Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 85/337/EEC — Assessment of the effects of certain public and private projects on the environment — Incorrect implementation — Project for a Valencia-Tarragona railway line, Las Palmas-Oropesa section)

1

2004/C 273/2

Judgment of the Court (Second Chamber) of 16 September 2004 in Case C-465/01: Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Freedom of movement for workers — Nationals of the Union or the EEA — Nationals of a non-member State associated with the Community by way of an agreement — Eligibility for election to workers' chambers and works councils — Principle of non-discrimination as regards conditions of work)

1

2004/C 273/3

Judgment of the Court (Third Chamber) of 16 September 2004 in Case C-248/02: Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Pollution and nuisance — Sol protection — Sewage sludge — Forwarding of incomplete information for the years 1995 to 1997 — Articles 10 and 17 of Directive 86/278/EEC)

2

2004/C 273/4

Judgment of the Court (Second Chamber) of 16 September 2004 in Case C-329/02 P: SAT.1 SatellitenFernsehen GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Appeals — Community trade mark — Absolute grounds for refusal to register — Article 7(1)(b) and (c) of Regulation (EC) No 40/94 — Sat.2)

3

2004/C 273/5

Judgment of the Court (Third Chamber) of 16 September 2004 in Case C-366/02 (reference for a preliminary ruling from the Verwaltungsgericht Halle): Gerd Gschoßmann v Amt für Landwirtschaft und Flurneuordnung Süd (Common agricultural policy — Regulation (EEC) No 1765/92 and (EC) No 1251/1999 — Support system for producers of arable crops — Compensatory payments for areas down to arable crops and subject to set-aside — Exclusion for land under permanent crops — Definition)

3

2004/C 273/6

Judgment of the Court (Second Chamber) of 16 September 2004 in Case C-382/02 (reference for a preliminary ruling from the Vestre Landsret): Cimber Air A/S v Skatteministeriet (Sixth VAT Directive — Article 15(6), (7) and (9) — Exemption of exports outside the Community — Meaning of aircraft used by airlines operating chiefly on international routes — Exemption for fuelling and provisioning of domestic flights)

4

2004/C 273/7

Judgment of the Court (Second Chamber) of 14 September 2004 in Case C-385/02: Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil its obligations — Directive 93/37/EEC — Public works contracts — Negotiated procedure without prior publication of a contract notice)

4

2004/C 273/8

Judgment of the Court (Second Chamber) of 16 September 2004 in Case C-386/02 (reference for a preliminary ruling from the Arbeits- und Sozialgericht Wien): Josef Baldinger v Pensionsversicherungsanstalt der Arbeiter (Free movement of persons — Compensation for ex-prisoners of war — Requirement to hold the nationality of the Member State concerned at the time of submission of the request for compensation)

5

2004/C 273/9

Judgment of the Court (Third Chamber) of 16 September 2004 in Case C-396/02 (reference for a preliminary ruling from the Gerechtshof te Amsterdam): DFDS BV v Inspecteur der Belastingdienst — Douanedistrict Rotterdam (Common Customs Tariff — Combined Nomenclature — Tariff classification — Subheading 8704 10 — Minitrac for the transport and dumping of sand, earth and stones with a sophisticated tipping system)

5

2004/C 273/0

Judgment of the Court (Second Chamber) of 16 September 2004 in Case C-400/02 (reference for a preliminary ruling from the Bundesarbeitsgericht): Gerard Merida v Bundesrepublik Deutschland (Article 39 EC — Collective agreement — Supplementary temporary allowance in favour of former civilian employees of the allied forces in Germany — Frontier workers — Determination of the basis of calculation of that allowance — Notional taking into account of German tax on wages)

6

2004/C 273/1

Judgment of the Court (Second Chamber) of 16 September 2004 in Case C-404/02 (reference for a preliminary ruling from the High Court of Justice of England and Wales (Chancery Division): Nichols plc v Registrar of Trade Marks (Trade marks — Directive 89/104/EEC — Article 3(1)(b) — Trade mark comprising a common surname — Distinctive character — Impact of Article 6(1)(a) on assessment)

6

2004/C 273/2

Judgment of the Court (Second Chamber) of 14 September 2004 in Case C-411/02: Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Incorrect transposition — Directive 98/10/EC — Telecommunications — Concepts of a basic level of itemised billing’ and still more detailed presentation)

7

2004/C 273/3

Judgment of the Court (First Chamber) of 16 September 2004 in Case C-28/03 (reference for a preliminary ruling from the Simvoulio tis Epikratias): Epikouriko Kefalaio v Ipourgos Anaptixis (Insurance — Articles 15 and 16 of First Directive 73/239/EEC — Articles 17 and 18 of First Directive 79/267/EEC — Proceedings for the liquidation of an insurance undertaking following the withdrawal of authorisation — Respective priority of salary claims and insurance claims)

7

2004/C 273/4

Judgment of the Court (Fifth Chamber) of 9 September 2004 in Case C-81/03: Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil its obligations — Articles 43 EC and 49 EC — Paramedical professions — Exercise on an independent basis)

8

2004/C 273/5

Judgment of the Court (Second Chamber) of 14 September 2004 in Case C-168/03: Commission of the European Communities v Kingdom of Spain (Failure by a Member State to fulfil its obligations — Directives 89/665/EEC and 95/63/EC — Incomplete transposition — Additional adjustment period)

8

2004/C 273/6

Judgment of the Court (Fifth Chamber) of 16 September 2004 in Case C-404/03 (reference for a preliminary ruling from the Tribunal de grande instance du Mans): Olivier Dupuy and Hervé Rouvre (Dangerous substances or preparations — Siccatives containing lead — Prohibition of placing on the market — Directives 76/769/CEE and 94/60/CE)

9

2004/C 273/7

Judgment of the Court (Fourth Chamber) of 16 September 2004 in Case C-423/03: Commission of the European Communities v Republic of Finland (Failure of a Member State to fulfil obligations — Non-transposition — Directive 2001/18/EC)

9

2004/C 273/8

Order of the Court (Sixth Chamber) of 9 July 2004 in Case C-116/03 P: Augusto Fichtner v Commission of the European Communities (Appeals — Officials — Disciplinary measure — Removal from post with entitlement to old-age pension — Pursuit of outside activities without prior authorisation)

9

2004/C 273/9

Case C-338/04: Reference for a preliminary ruling by the Tribunale di Larino — Sezione Distaccata di Termoli — by order of that court of 8 July 2004 in criminal proceedings against Massimiliano Placanica

10

2004/C 273/0

Case C-345/04: Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 26 May 2004 in the case of Centro Equestro da Leziria Grande LDA against Bundesamt für Finanzen

10

2004/C 273/1

Case C-347/04: Reference for a preliminary ruling by the Finanzgericht Köln by order of that court of 15 July 2004 in the case of REWE Zentralfinanz e.G., as universal legal successor of ITS Reisen GmbH against Finanzamt Köln-Mitte

10

2004/C 273/2

Case C-348/04: Reference for a preliminary ruling by the Court of Appeal (England & Wales) (Civil Division), by order of that court dated 17 June 2004, in the case of Boehringer Ingelheim KG and others against Swingward Ltd and another

11

2004/C 273/3

Case C-356/04: Reference for a preliminary ruling by the Rechtbank van Koophandel te Brussel by decision of that court of 29 July 2004 in the case of Lidl Belgium GmbH & Co KG against NV Etablissementen Franz Colruyt

12

2004/C 273/4

Case C-358/04: Reference for a preliminary ruling by the Tribunale di Vicenza, Sezione Distaccata di Schio by order of that court of 2 August 2004 in the case of Caseificio Valdagnese against Regione Veneto

13

2004/C 273/5

Case C-362/04: Reference for a preliminary ruling by the Simvoulio tis Epikratias – by order of that court of 29 July 2004 in the case of Mikaniki AE against the Ministry of Culture and against the intervening joint venture entitled J & P – AVAX AE – ARXITEX ATE – YETEM AE

13

2004/C 273/6

Case C-368/04: Reference for a preliminary ruling by the Verwaltungsgerichtshof, Austria, by decision of that court of 12 August 2004 in the case of (1) Transalpine Ölleitung in Österreich GmbH, (2) Planai-Hochwurzen-Bahnen GmbH, (3) Gerlitzen-Kanzelbahn-Touristik Gesellschaft mbH & CO KG, against (1) the Finanzlandesdirektion für Tirol, (2) the Finanzlandesdirektion für Steiermark, and (3) the Finanzlandesdirektion für Kärnten

13

2004/C 273/7

Case C-369/04: Reference for a preliminary ruling by the VAT and Duties Tribunals, London Tribunal Centre, by direction of that court dated 24 August 2004, in the case of Hutchison 3G UK Ltd, mmO2 plc, Orange 3G Ltd, T-Mobile (UK) Ltd, Vodafone Group Services Ltd against Commissioners of Customs and Excise

2

14

2004/C 273/8

Case C-371/04: Action brought on 30 August 2004 by the Commission of the European Communities against the Italian Republic

15

2004/C 273/9

Case C-372/04: Reference for a preliminary ruling by the Court of Appeal (England & Wales) (Civil Division), by order of that court dated 12 July 2004, in the case of The Queen on the application of Yvonne Watts against 1) Bedford Primary Care Trust 2) Secretary of State for Health

15

2004/C 273/0

Case C-374/04: Reference for a preliminary ruling by the High Court of Justice (England & Wales) (Chancery Division), by order of that court dated 25 August 2004, in the case of Test Claimants in Class IV of the ACT Group Litigation against Commissioners of Inland Revenue

17

2004/C 273/1

Case C-384/04: Reference for a preliminary ruling by the Court of Appeal (England and Wales) (Civil Division), by order of that court dated 30 July 2004, in the case of (1) Commissioners of Customs and Excise (2) H.M. Attorney-General against Federation of Technological Industries and 53 others

18

2004/C 273/2

Case C-389/04: Action brought on 10 September 2004 by the Commission of the European Communities against the French Republic

19

2004/C 273/3

Case C-390/04: Reference for a preliminary ruling by the Regeringsrätten (Supreme Administrative Court) by decision of that court of 7 September 2004 in the case of GöteborgsOperan AB v Skatteverket

19

2004/C 273/4

Case C-391/04: Reference for a preliminary ruling by the Simvoulio tis Epikratias by order of that court of 6 July 2004 in the case of Ipourgos Ikonomikon and Proistamenos D.O.I. Amfissas against Charilaos Georgakis

20

2004/C 273/5

Case C-392/04: Reference for a preliminary ruling by the Bundesverwaltungsgericht by order of that court of 7 July 2004 in the case i-21-germany GmbH against the Federal Republic of Germany

20

2004/C 273/6

Case C-393/04: Reference for a preliminary ruling by the Cour d'appel de Liège (Ninth Chamber) by decision of that court of 15 September 2004 in the case of Air Liquide Industries Belgium SA against Ville de Seraing

21

2004/C 273/7

Case C-394/04: Reference for a preliminary ruling by the Simvoulio tis Epikratias by order of that court of 16 June 2004 in the case of Diagnostikon kai Therapeftikon Kentron Athinon – Igia A.E. against Ipourgos Ikonomikon

21

2004/C 273/8

Case C-395/04: Reference for a preliminary ruling by the Simvoulio tis Epikratias by order of that court of 16 June 2004 in the case of Diagnostikon kai Therapeftikon Kentron Athinon – Igia A.E. against Ipourgos Ikonomikon

21

2004/C 273/9

Case C-396/04: Action brought on 20 September 2004 by the Commission of the European Communities against the Republic of Finland

21

2004/C 273/0

Case C-399/04: Action brought on 21 September 2004 by the Commission of the European Communities against the French Republic

22

2004/C 273/1

Case C-400/04: Action brought on 21 September 2004 by the Commission of the European Communities against the Kingdom of the Netherlands

22

2004/C 273/2

Case C-401/04: Action brought on 22 September 2004 by the Commission of the European Communities against the Kingdom of Sweden

23

2004/C 273/3

Case C-402/04: Action brought on 22 September 2004 by the Commission of the European Communities against the French Republic

23

2004/C 273/4

Case C-404/04 P: Appeal brought on 22 September 2004 by Technische Glaswerke Ilmenau GmbH against the judgment delivered on 8 July 2004 by the Fifth Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-198/01 between Technische Glaswerke Ilmenau GmbH and the Commission of the European Communities, supported by Schott Glas

23

2004/C 273/5

Case C-411/04 P: Appeal brought on 23 September 2004 by Mannesmannröhren-Werke AG against the judgment delivered on 8 July 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-44/00 between Mannesmannröhren-Werke AG and the Commission of the European Communities

24

2004/C 273/6

Case C-413/04: Action brought on 27 September 2004 by the European Parliament against the Council of the European Union

25

2004/C 273/7

Case C-414/04: Action brought on 27 September 2004 by the European Parliament against the Council of the European Union

26

2004/C 273/8

Removal from the register of Case C-13/02

26

2004/C 273/9

Removal from the register of Case C-81/02

26

2004/C 273/0

Removal from the register of Case C-197/02

26

2004/C 273/1

Removal from the register of Case C-361/03 P

27

2004/C 273/2

Removal from the register of Case C-457/03

27

2004/C 273/3

Removal from the register of Case C-554/03

27

2004/C 273/4

Removal from the register of Case C-17/04

27

COURT OF FIRST INSTANCE

2004/C 273/5

Case T-168/04: Action brought on 14 May 2004 by L&D S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

28

2004/C 273/6

Case T-261/04: Action brought on 21 June 2004 by Alain Crespinet against the Commission of the European Communities

28

2004/C 273/7

Case T-272/04: Action brought on 6 July 2004 by Jean-Paul Keppenne against the Commission of the European Communities

29

2004/C 273/8

Case T-291/04: Action brought on 16 July 2004 by Enviro Tech Europe, Ltd., and Enviro Tech International, Inc., against the Commission of the European Communities

29

2004/C 273/9

Case T-318/04: Action brought on 4 August 2004 by Vladimir Boucek against the Commission of the European Communities

30

2004/C 273/0

Case T-320/04: Action brought on 30 July 2004 by Triantafyllia Dionyssopoulou against the Council of the European Union

30

2004/C 273/1

Case T-325/04: Action brought on 5 August 2004 by Citicorp against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

31

2004/C 273/2

Case T-326/04: Action brought on 6 August 2004 by the Commission of the European Communities against Silicon and Software Systems Limited

32

2004/C 273/3

Case T-327/04: Action brought on 3 August 2004 by Syndicat National de l'Industrie des Viandes (SNIV) against the Commission of the European Communities

32

2004/C 273/4

Case T-328/04: Action brought on 3 August 2004 by Günter Wilms against the Commission of the European Communities

33

2004/C 273/5

Case T-334/04: Action brought on 11 August 2004 by House of Donuts International against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

34

2004/C 273/6

Case T-335/04: Action brought on 11 August 2004 by Viz Stal and Duferco Commerciale SpA against the Council of the European Union

34

2004/C 273/7

Case T-337/04: Action brought on 29 July 2004 by Athanasios Pitsiorlas against the Council of the European Union and the European Central Bank

35

2004/C 273/8

Case T-353/04: Action brought on 23 August 2004 by Ontex N.V. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

36

2004/C 273/9

Case T-356/04: Action brought on 27 August 2004 by SmithKline Beecham p.l.c. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

36

2004/C 273/0

Case T-362/04: Action brought on 3 September 2004 by Leonid Minin against the Commission of the European Communities

37

2004/C 273/1

Case T-381/04: Action brought on 23 September 2004 by the Italian Republic against the Commission of the European Communities

38

2004/C 273/2

Removal from the Register of Case T-118/04 R

38

2004/C 273/3

Removal from the Register of Case T-134/04 R

38

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| | III   Notices |
| --- | --- |
| 2004/C 273/4 | Last publication of the Court of Justice in the Official Journal of the European Union OJ C 262, 23.10.2004 | 39 |

III   Notices

2004/C 273/4

Last publication of the Court of Justice in the Official Journal of the European Union OJ C 262, 23.10.2004

Official Journal of the European Union

39

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

EN

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I Information

Court of Justice

COURT OF JUSTICE

| 6.11.2004 | EN | Official Journal of the European Union | C 273/1 |
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6.11.2004

EN

Official Journal of the European Union

C 273/1

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JUDGMENT OF THE COURT

(Second Chamber)

of 16 September 2004

in Case C-227/01: Commission of the European Communities v Kingdom of Spain (1)

(Failure of a Member State to fulfil obligations - Directive 85/337/EEC - Assessment of the effects of certain public and private projects on the environment - Incorrect implementation - Project for a Valencia-Tarragona railway line, Las Palmas-Oropesa section)

(2004/C 273/01)

Language of the case: Spanish

In Case C-227/01: action under Article 226 EC for failure to fulfil obligations, brought on 7 June 2001, Commission of the European Communities (Agent: G. Valero Jordana) v Kingdom of Spain (Agents: S. Ortiz Vaamonde) — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann, J.N. Cunha Rodrigues, R. Schintgen (Rapporteur) and F. Macken, Judges; L. Poiares Maduro, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 16 September 2004, in which it:

| 1. | Declares that by failing to carry out an assessment of the effects on the environment of the ‘project for a Valencia-Tarragona railway line, Las Palmas-Oropesa section. Roadbed’, which forms part of the project known as the ‘Mediterranean corridor’, the Kingdom of Spain has failed to fulfil its obligations under Articles 2, 3, 5(2) and 6(2) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment; |
| --- | --- |

1.

Declares that by failing to carry out an assessment of the effects on the environment of the ‘project for a Valencia-Tarragona railway line, Las Palmas-Oropesa section. Roadbed’, which forms part of the project known as the ‘Mediterranean corridor’, the Kingdom of Spain has failed to fulfil its obligations under Articles 2, 3, 5(2) and 6(2) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment;

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

2.

Orders the Kingdom of Spain to pay the costs.

---

(1)   OJ C 212 of 28.7.2001.

---

| 6.11.2004 | EN | Official Journal of the European Union | C 273/1 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/1

---

JUDGMENT OF THE COURT

(Second Chamber)

of 16 September 2004

in Case C-465/01: Commission of the European Communities v Republic of Austria (1)

(Failure of a Member State to fulfil obligations - Freedom of movement for workers - Nationals of the Union or the EEA - Nationals of a non-member State associated with the Community by way of an agreement - Eligibility for election to workers' chambers and works councils - Principle of non-discrimination as regards conditions of work)

(2004/C 273/02)

Language of the case: German

In Case C-465/01: action under Article 226 EC for failure to fulfil obligations, brought on 4 December 2001, Commission of the European Communities (Agent: J. Sack ) v Republic of Austria (Agent: H. Dossi) — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, R. Schintgen (Rapporteur), R. Silva de Lapuerta, P. Kuris and G. Arestis, Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, gave a judgment on 16 September 2004, in which it:

| 1. | (a) | Declares that: by denying workers who are nationals of other Member States of the European Union or the European Economic Area the right to stand for election to workers' and employees' chambers, the Republic of Austria has failed to fulfil its obligations under Article 39 EC, Article 8 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992, and Article 28 of the Agreement on the European Economic Area; |
| --- | --- | --- |

1.

(a)

Declares that: by denying workers who are nationals of other Member States of the European Union or the European Economic Area the right to stand for election to workers' and employees' chambers, the Republic of Austria has failed to fulfil its obligations under Article 39 EC, Article 8 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992, and Article 28 of the Agreement on the European Economic Area;

| (b) | by denying workers who are nationals of a non-member State with which the Community has concluded an agreement prohibiting discrimination, as regards conditions of work, against any such workers legally employed in a Member State, the right to stand for election to works councils and the general assemblies of workers' and employees' chambers, the Republic of Austria has failed to fulfil its obligations under those agreements; |
| --- | --- |

(b)

by denying workers who are nationals of a non-member State with which the Community has concluded an agreement prohibiting discrimination, as regards conditions of work, against any such workers legally employed in a Member State, the right to stand for election to works councils and the general assemblies of workers' and employees' chambers, the Republic of Austria has failed to fulfil its obligations under those agreements;

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

2.

Orders the Republic of Austria to pay the costs.

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(1)  OJ C 84 of 6.4.2002.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/2 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/2

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JUDGMENT OF THE COURT

(Third Chamber)

of 16 September 2004

in Case C-248/02: Commission of the European Communities v Italian Republic (1)

(Failure of a Member State to fulfil obligations - Pollution and nuisance - Sol protection - Sewage sludge - Forwarding of incomplete information for the years 1995 to 1997 - Articles 10 and 17 of Directive 86/278/EEC)

(2004/C 273/03)

Language of the case: Italian

In Case C-248/02: Commission of the European Communities (Agents: H. Støvlbæk and R Amorosi) v Italian Republic (Agent: I.M. Braguglia, assisted by M. Fiorilli) the Court (Third Chamber), composed of: A. Rosas, acting as President of the Third Chamber, R. Schintgen and K. Schiemann (Rapporteur), Judges; C- Stix-Hackl, Advocate General; R. Grass, Registrar, gave a judgment on 16 September 2004, the operative part of which is as follows:

| 1. | By not providing any information on the average annual value for concentrations (mg/kg dry matter) of heavy metal (cadmium, copper, nickel, lead, zinc, mercury and chromium) and of the elements nitrogen and phosphorus contained in sewage sludge;






  — | by failing to provide any information as to quantity (t/year) of sewage sludge produced as dry matter; |
| --- | --- | --- |

1.

By not providing any information on the average annual value for concentrations (mg/kg dry matter) of heavy metal (cadmium, copper, nickel, lead, zinc, mercury and chromium) and of the elements nitrogen and phosphorus contained in sewage sludge;

—

by failing to provide any information as to quantity (t/year) of sewage sludge produced as dry matter;

| — | by failing to provide the necessary information as to the quantity of sludge used annually in agriculture as dry matter, except in regard to the Region of Friuli-Venezia Giulia (1995 to 1997), the Autonomous Province of Bolzano (1995), Emilia Romagna, Liguria and Calabria, in respect of which it was indicated that sewage sludge was not used in agriculture; |
| --- | --- |

—

by failing to provide the necessary information as to the quantity of sludge used annually in agriculture as dry matter, except in regard to the Region of Friuli-Venezia Giulia (1995 to 1997), the Autonomous Province of Bolzano (1995), Emilia Romagna, Liguria and Calabria, in respect of which it was indicated that sewage sludge was not used in agriculture;

| — | by failing to ensure that the registers in which the composition and characteristics of the sludge are entered by reference to the parameters referred to in Annex II as to Council Directive 86/278/EEC of 12 June 1986 on the protection of the environment, and in particular of the soil, when sewage sludge is used in agriculture are properly updated, and |
| --- | --- |

—

by failing to ensure that the registers in which the composition and characteristics of the sludge are entered by reference to the parameters referred to in Annex II as to Council Directive 86/278/EEC of 12 June 1986 on the protection of the environment, and in particular of the soil, when sewage sludge is used in agriculture are properly updated, and

| — | by failing to ensure that the registers in which the quantities of sludge produced (with regard to the whole of Italy) and the sludge used in agriculture, at least with regard to Abruzzo, Campania, Tuscany and Sicily are entered are properly updated, |
| --- | --- |

—

by failing to ensure that the registers in which the quantities of sludge produced (with regard to the whole of Italy) and the sludge used in agriculture, at least with regard to Abruzzo, Campania, Tuscany and Sicily are entered are properly updated,

the Italian Republic has failed to fulfil its obligations under Articles 10(1)(a) and (b) and 17 of Directive 86/728, as amended by Council Directive 91/692/EEC of 23 December 1991, which seeks to standardise and to rationalise reports on the implementation of certain directives concerning the environment.

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

2.

The Italian Republic is ordered to pay the costs.

---

(1)  OJ C 202 of 24.8.2002.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/3 |
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6.11.2004

EN

Official Journal of the European Union

C 273/3

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JUDGMENT OF THE COURT

(Second Chamber)

of 16 September 2004

in Case C-329/02 P: SAT.1 SatellitenFernsehen GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Appeals - Community trade mark - Absolute grounds for refusal to register - Article 7(1)(b) and (c) of Regulation (EC) No 40/94 - ‘Sat.2’)

(2004/C 273/04)

Language of the case: German

In Case C-329/02 P: appeal under Article 56 of the Statute of the Court of Justice, lodged at the Court on 12 September 2002, SAT.1 SatellitenFernsehen GmbH, established in Mayence (Germany) (avocat: R. Schneider) the other party to the proceedings being: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agent: D. Schennen) — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, J.-P. Puissochet (Rapporteur), R. Schintgen, F. Macken and N. Colneric, Judges; F.G. Jacobs, Advocate General; H. von Holstein, Deputy Registrar, for the Registrar, has given a judgment on16 September 2004, in which it has ruled:

| 1. | Sets aside the judgment of the Court of First Instance of the European Communities of 2 July 2002 in Case T-323/00 SAT.1 v OHIM (SAT.2) [2002] ECR II-2839 inasmuch as the Court of First Instance found that the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) had not infringed Article 7(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark by refusing, by its decision of 2 August 2000 (Case R 312/1999-2), to register as a Community trade mark the term ‘SAT.2’ in respect of services which, in the registration application, are connected with satellite broadcasting, that is to say the services referred to in paragraph 3 of the contested judgment to which the Court of First Instance does not refer in paragraph 42 of the contested judgment; |
| --- | --- |

1.

Sets aside the judgment of the Court of First Instance of the European Communities of 2 July 2002 in Case T-323/00 SAT.1 v OHIM (SAT.2) [2002] ECR II-2839 inasmuch as the Court of First Instance found that the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) had not infringed Article 7(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark by refusing, by its decision of 2 August 2000 (Case R 312/1999-2), to register as a Community trade mark the term ‘SAT.2’ in respect of services which, in the registration application, are connected with satellite broadcasting, that is to say the services referred to in paragraph 3 of the contested judgment to which the Court of First Instance does not refer in paragraph 42 of the contested judgment;

| 2. | Annuls the decision of 2 August 2000 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs); |
| --- | --- |

2.

Annuls the decision of 2 August 2000 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs);

| 3. | Orders the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs incurred in these proceedings and in those before the Court of First Instance. |
| --- | --- |

3.

Orders the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs incurred in these proceedings and in those before the Court of First Instance.

---

(1)   OJ C 289 of 23.11.2002.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/3 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/3

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JUDGMENT OF THE COURT

(Third Chamber)

of 16 September 2004

in Case C-366/02 (reference for a preliminary ruling from the Verwaltungsgericht Halle): Gerd Gschoßmann v Amt für Landwirtschaft und Flurneuordnung Süd (1)

(Common agricultural policy - Regulation (EEC) No 1765/92 and (EC) No 1251/1999 - Support system for producers of arable crops - Compensatory payments for areas down to arable crops and subject to set-aside - Exclusion for land under permanent crops - Definition)

(2004/C 273/05)

Language of the case: German

In Case C-366/02: reference for a preliminary ruling under Article 234 EC from the Verwaltungsgericht Halle (Germany), made by decision of 30 September 2002, received at the Court on 14 October 2002, in the proceedings between Gerd Gschoßmann and Amt für Landwirtschaft und Flurneuordnung Süd — the Court (Third Chamber), composed of: A. Rosas, acting for the President of the Third Chamber, R. Schintgen (Rapporteur) and N. Colneric, Judges; P. Léger, Advocate General; R. Grass, Registrar, has given a judgment on 16 September 2004, in which it has ruled:

| 1. | Article 9 of Council Regulation (EEC) No 1765/92 of 30 June 1992 establishing a support system for producers of certain arable crops and Article 7 of Council Regulation (EC) No 1251/1999 of 17 May 1999 establishing a support system for producers of certain arable crops must be interpreted as meaning that, for land under permanent crops to be excluded from compensatory payments, there is no requirement that the land has been cultivated, and in particular that insecticides have been used or crops harvested. |
| --- | --- |

1.

Article 9 of Council Regulation (EEC) No 1765/92 of 30 June 1992 establishing a support system for producers of certain arable crops and Article 7 of Council Regulation (EC) No 1251/1999 of 17 May 1999 establishing a support system for producers of certain arable crops must be interpreted as meaning that, for land under permanent crops to be excluded from compensatory payments, there is no requirement that the land has been cultivated, and in particular that insecticides have been used or crops harvested.

| 2. | Article 9 of Regulation No 1765/92 and Article 7 of Regulation No 1251/1999 must be interpreted as meaning that the land ceases to be under permanent crops, in the case of apple production, once the apple trees have been felled, even if they have not been removed. However, the mere decision to fell the trees, without that decision being put into practice, does not mean that the land ceases to be under permanent crops. |
| --- | --- |

2.

Article 9 of Regulation No 1765/92 and Article 7 of Regulation No 1251/1999 must be interpreted as meaning that the land ceases to be under permanent crops, in the case of apple production, once the apple trees have been felled, even if they have not been removed. However, the mere decision to fell the trees, without that decision being put into practice, does not mean that the land ceases to be under permanent crops.

| 3. | Article 9 of Regulation No 1765/92 and Article 7 of Regulation No 1251/1999 must be interpreted as meaning that land which has ceased to be under permanent crops must be regarded as being used for non-agricultural purposes if is shown that it is not intended for the production of other plants or animals. |
| --- | --- |

3.

Article 9 of Regulation No 1765/92 and Article 7 of Regulation No 1251/1999 must be interpreted as meaning that land which has ceased to be under permanent crops must be regarded as being used for non-agricultural purposes if is shown that it is not intended for the production of other plants or animals.

---

(1)  OJ C 305 of 7.12.2002.

---

| 6.11.2004 | EN | Official Journal of the European Union | C 273/4 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/4

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JUDGMENT OF THE COURT

(Second Chamber)

of 16 September 2004

in Case C-382/02 (reference for a preliminary ruling from the Vestre Landsret): Cimber Air A/S v Skatteministeriet (1)

(Sixth VAT Directive - Article 15(6), (7) and (9) - Exemption of exports outside the Community - Meaning of ‘aircraft used by airlines operating chiefly on international routes’ - Exemption for fuelling and provisioning of domestic flights)

(2004/C 273/06)

Language of the case: Danish

In Case C-382/02: reference for a preliminary ruling under Article 234 EC, from the Vestre Landsret (Denmark), made by decision of 9 October 2002, received at the Court on 23 October 2002, in the proceedings between Cimber Air A/S and Skatteministeriet — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann, J.-P. Puissochet (Rapporteur), J.N. Cunha Rodrigues and N. Colneric, Judges; D. Ruiz-Jarabo Colomer, Advocate General; H. von Holstein, Deputy Registrar, for the Registrar, has given a judgment on16 September 2004, in which it has ruled:

| 1. | Article 15(6), (7) and (9) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment must be interpreted as meaning that the supplies of goods and services referred to in those provisions to aircraft which operate on domestic routes but are used by airlines chiefly operating for reward on international routes are exempt from VAT. |
| --- | --- |

1.

Article 15(6), (7) and (9) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment must be interpreted as meaning that the supplies of goods and services referred to in those provisions to aircraft which operate on domestic routes but are used by airlines chiefly operating for reward on international routes are exempt from VAT.

| 2. | It is for the national courts to assess the extent of the international business and the extent of the non-international business of such companies. In doing so, they may take account of all information which indicates the relative importance of the type of operations concerned, in particular turnover. |
| --- | --- |

2.

It is for the national courts to assess the extent of the international business and the extent of the non-international business of such companies. In doing so, they may take account of all information which indicates the relative importance of the type of operations concerned, in particular turnover.

---

(1)  OJ C 7 of 11.1.2003.

---

| 6.11.2004 | EN | Official Journal of the European Union | C 273/4 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/4

---

JUDGMENT OF THE COURT

(Second Chamber)

of 14 September 2004

in Case C-385/02: Commission of the European Communities v Italian Republic (1)

(Failure of a Member State to fulfil its obligations - Directive 93/37/EEC - Public works contracts - Negotiated procedure without prior publication of a contract notice)

(2004/C 273/07)

Language of the case: Italian

In Case C-385/02: Commission of the European Communities (Agents: K. Wiedner and R. Amorosi) v Italian Republic (Agent: M. Fiorilli) — action under Article 226 EC for failure to fulfil obligations, brought before the Court on 28 October 2002, — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, J.-P. Puissochet, J.N. Cunha Rodrigues (Rapporteur), R. Schintgen and N. Colneric, Judges; J. Kokott, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 14 September 2004, in which it:

| 1. | Declares that, as the Magistrato per il Po di Parma, a local agency of the Ministry of Public Works (now the Ministry for Infrastructure and Transport) awarded contracts for the completion of the construction of an overflow basin to retain flood waters of the Parma watercourse in the Marano area (in the Parma commune) as well as for works relating to the development and completion of an overflow basin for the Enza watercourse and to the retention of flood waters of the Terdoppio watercourse south-west of Cerano by the negotiated procedure without prior publication of a contract notice, when the conditions necessary in that regard were not satisfied, the Italian Republic has failed to fulfil its obligations under Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts; |
| --- | --- |

1.

Declares that, as the Magistrato per il Po di Parma, a local agency of the Ministry of Public Works (now the Ministry for Infrastructure and Transport) awarded contracts for the completion of the construction of an overflow basin to retain flood waters of the Parma watercourse in the Marano area (in the Parma commune) as well as for works relating to the development and completion of an overflow basin for the Enza watercourse and to the retention of flood waters of the Terdoppio watercourse south-west of Cerano by the negotiated procedure without prior publication of a contract notice, when the conditions necessary in that regard were not satisfied, the Italian Republic has failed to fulfil its obligations under Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts;

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

2.

Orders the Italian Republic to pay the costs.

---

(1)  OJ C 323 of 21.12.2002.

---

| 6.11.2004 | EN | Official Journal of the European Union | C 273/5 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/5

---

JUDGMENT OF THE COURT

(Second Chamber)

of 16 September 2004

in Case C-386/02 (reference for a preliminary ruling from the Arbeits- und Sozialgericht Wien): Josef Baldinger v Pensionsversicherungsanstalt der Arbeiter (1)

(Free movement of persons - Compensation for ex-prisoners of war - Requirement to hold the nationality of the Member State concerned at the time of submission of the request for compensation)

(2004/C 273/08)

Language of the case: German

In Case C-386/02: reference for a preliminary ruling under Article 234 EC, from the Arbeits- und Sozialgericht Wien (Austria), made by decision of 22 October 2002, registered at the Court on 28 October 2002, in the proceedings between Josef Baldinger and Pensionsversicherungsanstalt der Arbeiter — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, J.-P. Puissochet, J.N. Cunha Rodrigues (Rapporteur), R. Schintgen and N. Colneric, Judges; D. Ruiz-Jarabo Colomer, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 16 September 2004, in which it has ruled:

Article 39(2) EC, Article 4(4) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, and Article 7(2) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community, must be interpreted as not precluding national legislation which, in circumstances such as those in the main proceedings, refuses to grant an allowance in favour of former prisoners of war on the ground that the applicant did not hold the nationality of the Member State involved when the application was made, but that of another Member State.

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(1)   OJ C 7 of 11.1.2003.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/5 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/5

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JUDGMENT OF THE COURT

(Third Chamber)

of 16 September 2004

in Case C-396/02 (reference for a preliminary ruling from the Gerechtshof te Amsterdam): DFDS BV v Inspecteur der Belastingdienst — Douanedistrict Rotterdam (1)

(Common Customs Tariff - Combined Nomenclature - Tariff classification - Subheading 8704 10 - ‘Minitrac’ for the transport and dumping of sand, earth and stones with a sophisticated tipping system)

(2004/C 273/09)

Language of the case: Dutch

In Case C-396/02: reference for a preliminary ruling under Article 234 EC from the Gerechtshof te Amsterdam (Netherlands), made by decision of 6 November 2002, received on 11 November 2002, in the proceedings: DFDS BV v Inspecteur der Belastingdienst — Douanedistrict Rotterdam — the Court (Third Chamber), composed of: A. Rosas, acting for the President of the Third Chamber, R. Schintgen and K. Schiemann (Rapporteur), Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, has given a judgment on 16 September 2004, in which it has ruled:

The fact that a flatbed vehicle is equipped with an intricate, versatile and precise tipping function does not exclude its classification as a dumper within the meaning of subheading 8704 10 of the Combined Nomenclature set out in Annex I to Council Regulation (EEC) 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, in the versions resulting from Commission Regulations (EC) Nos 3115/94 of 20 December 1994 and 3009/95 of 22 December 1995.

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(1)  OJ C 7 of 11.1.2003.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/6 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/6

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JUDGMENT OF THE COURT

(Second Chamber)

of 16 September 2004

in Case C-400/02 (reference for a preliminary ruling from the Bundesarbeitsgericht): Gerard Merida v Bundesrepublik Deutschland (1)

(Article 39 EC - Collective agreement - Supplementary temporary allowance in favour of former civilian employees of the allied forces in Germany - Frontier workers - Determination of the basis of calculation of that allowance - Notional taking into account of German tax on wages)

(2004/C 273/10)

Language of the case: German

In Case C-400/02: reference for a preliminary ruling under Article 234 EC, by the Bundesarbeitsgericht (Germany), made by decision of 27 June 2002, received at the Court on 12 November 2002, in the proceedings between Gerard Merida and Bundesrepublik Deutschland — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, J.-P. Puissochet, J.N. Cunha Rodrigues (Rapporteur), R. Schintgen and N. Colneric, Judges; C. Stix-Hackl, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 16 September 2004, in which it has ruled:

Articles 39 EC and 7(4) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community preclude national legislation provided for in a collective agreement under which the amount of a social benefit such as interim assistance (‘Überbrückungsbeihilfe’) paid by the Member State of employment is calculated in such a way that the tax on wages payable in that State is notionally deducted on determination of the basis of assessment of that benefit, even though, under a double taxation agreement, salaries, wages and analogous emoluments paid to workers not residing in the Member State of employment are chargeable to tax only in the Member State in which such workers are resident.

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(1)  OJ C 31, 8.2.2003.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/6 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/6

---

JUDGMENT OF THE COURT

(Second Chamber)

of 16 September 2004

in Case C-404/02 (reference for a preliminary ruling from the High Court of Justice of England and Wales (Chancery Division): Nichols plc v Registrar of Trade Marks (1)

(Trade marks - Directive 89/104/EEC - Article 3(1)(b) - Trade mark comprising a common surname - Distinctive character - Impact of Article 6(1)(a) on assessment)

(2004/C 273/11)

Language of the case: English

In Case C-404/02: reference for a preliminary ruling under Article 234 EC, from the High Court of Justice of England and Wales, Chancery Division, (United Kingdom), made by decision of 3 September 2002, registered at the Court on 12 November 2002, in the proceedings between Nichols plc and Registrar of Trade Marks — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann (Rapporteur), J.-P. Puissochet, R. Schintgen and N. Colneric, Judges; D. Ruiz-Jarabo Colomer, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 16 September 2004, in which it has ruled:

In the context of Article 3(1)(b) of the First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, the assessment of the existence or otherwise of the distinctive character of a trade mark constituted by a surname, even a common one, must be carried out specifically, in accordance with the criteria applicable to any sign covered by Article 2 of that directive, in relation, first, to the products or services in respect of which registration is applied for and, second, to the perception of the relevant consumers. The fact that the effects of registration of the trade mark are limited by virtue of Article 6(1)(a) of that directive has no impact on that assessment.

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(1)  OJ C 7, 11.1.2003.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/7 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/7

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JUDGMENT OF THE COURT

(Second Chamber)

of 14 September 2004

in Case C-411/02: Commission of the European Communities v Republic of Austria (1)

(Failure of a Member State to fulfil obligations - Incorrect transposition - Directive 98/10/EC - Telecommunications - Concepts of ‘a basic level of itemised billing’ and ‘still more detailed presentation’)

(2004/C 273/12)

Language of the case: German

In Case C-411/02: action under Article 226 EC for failure to fulfil obligations, brought on 18 November 2002, Commission of the European Communities (Agents: C. Schmidt and M. Shotter) v Republic of Austria (Agents: E. Riedl and T. Kramler) — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann (Rapporteur), J.-P. Puissochet, J.N. Cunha Rodrigues and N. Colneric, Judges; M. Poiares Maduro, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, has given a judgment on 14 September 2004, in which it:

| 1. | Declares that, by opting for billing which lists charges only according to the type of charge and is not sufficiently detailed to ensure effective verification and control by the consumer, the Republic of Austria has failed to fulfil its obligations under Article 14(2) of Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment; |
| --- | --- |

1.

Declares that, by opting for billing which lists charges only according to the type of charge and is not sufficiently detailed to ensure effective verification and control by the consumer, the Republic of Austria has failed to fulfil its obligations under Article 14(2) of Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment;

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

2.

Orders the Republic of Austria to pay the costs.

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(1)  OJ C 7, 11.1.2003.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/7 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/7

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JUDGMENT OF THE COURT

(First Chamber)

of 16 September 2004

in Case C-28/03 (reference for a preliminary ruling from the Simvoulio tis Epikratias): Epikouriko Kefalaio v Ipourgos Anaptixis (1)

(Insurance - Articles 15 and 16 of First Directive 73/239/EEC - Articles 17 and 18 of First Directive 79/267/EEC - Proceedings for the liquidation of an insurance undertaking following the withdrawal of authorisation - Respective priority of salary claims and insurance claims)

(2004/C 273/13)

Language of the case: Greek

In Case C-28/03: reference for a preliminary ruling under Article 234 EC from the Simvoulio tis Epikratias (Greece), made by order of 23 October 2002, received at the Court on 24 January 2003, in the proceedings between Epikouriko Kefalaio and Ipourgos Anaptixis, intervener: Omospondia Asfalistikon Sillogon Elladas — the Court (First Chamber), composed of: P. Jann, President of the Chamber, A. Rosas, S. von Bahr, R. Silva de Lapuerta and K. Lenaerts (Rapporteur), Judges; L.A. Geelhoed, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 16 September 2004, in which it has ruled:

Articles 15 and 16 of First Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance, as amended by Second Council Directive 88/357/EEC of 22 June 1988 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 73/239 and by Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239 and 88/357 (third non-life insurance Directive), and Articles 17 and 18 of First Council Directive 79/267/EEC of 5 March 1979 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct life assurance, as amended by Council Directive 90/619/EEC of 8 November 1990 on the coordination of laws, regulations and administrative provisions relating to direct life assurance, laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 79/267 and by Council Directive 92/96/EEC of 10 November 1992 on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267 and 90/619 (third life assurance Directive) do not preclude national legislation under which, if an insurance company is the subject of insolvency proceedings, is put into liquidation or is otherwise in a state of insolvency, the assets representing the technical provisions may be allocated to payment of salary claims before payment of insurance claims, where that legislation accords to insurance claims a priority whose scope encompasses in any event, in addition to the assets representing the technical provisions, other assets of the undertaking and may, by virtue of a ministerial decision, have been extended to all the available assets of the undertaking.

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(1)   OJ C 70 of 22.3.2003.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/8 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/8

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JUDGMENT OF THE COURT

(Fifth Chamber)

of 9 September 2004

in Case C-81/03: Commission of the European Communities v Republic of Austria (1)

(Failure of a Member State to fulfil its obligations - Articles 43 EC and 49 EC - Paramedical professions - Exercise on an independent basis)

(2004/C 273/14)

Language of the case: German

In Case C-81/03: Commission of the European Communities (Agents: C. Schmidt and M. Patakia) against Republic of Austria (Agent: E. Riedl) — application for a declaration of failure to act under Article 226 EC, brought on 21 February 2003 — the Court (Fifth Chamber), composed of: C. Gulmann, President of the Chamber, S. von Bahr and R. Silva da Lapuerta (Rapporteur), Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, has given a judgment on 9 September 2004, the operative part of which is as follows:

| 1. | By prohibiting, under Paragraph 7a of the Federal Law on the Regulation of Higher Medico-Technical Services, the independent exercise of certain medico-technical professions (laboratory technicians, radiology technicians and orthoptists), the Republic of Austria has failed to fulfil its obligations under Articles 43 EC and 49 EC; |
| --- | --- |

1.

By prohibiting, under Paragraph 7a of the Federal Law on the Regulation of Higher Medico-Technical Services, the independent exercise of certain medico-technical professions (laboratory technicians, radiology technicians and orthoptists), the Republic of Austria has failed to fulfil its obligations under Articles 43 EC and 49 EC;

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

2.

The Republic of Austria is ordered to pay the costs.

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(1)  OJ C 101 of 26.4.2003.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/8 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/8

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JUDGMENT OF THE COURT

(Second Chamber)

of 14 September 2004

in Case C-168/03: Commission of the European Communities v Kingdom of Spain (1)

(Failure by a Member State to fulfil its obligations - Directives 89/665/EEC and 95/63/EC - Incomplete transposition - Additional adjustment period)

(2004/C 273/15)

Language of the case: Spanish

In Case C-168/03: Commission of the European Communities (Agent: I. Martínez del Peral) v Kingdom of Spain (Agent: L. Fragua Gadea) — action under Article 226 EC for failure to fulfil obligations, brought on 11 April 2003 — the Court (Second Chamber), composed of: C W.A Timmermans, President of the Chamber, J.N. Cunha Rodrigues, J-P. Puissochet, R. Schintgen and N. Colneric (Rapporteur) Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, gave a judgment on 14 September 2004, the operative part of which is as follows:

| 1) | By providing, in Article 1 of the sole transitional provision of Royal Decree No 1215/1997 of 18 July 1997 laying down the minimum safety and health requirements for the use of work equipment by workers, for an additional adjustment period for work equipment already provided to workers at the undertaking and/or establishment prior to 27 August 1997, the Kingdom of Spain has failed to fulfil its obligations under Article 4(1)(b) of Council Directive 89/665/EEC of 30 November 1989 concerning the minimum safety and health requirements for the use of work equipment by workers at work (second individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC) (89/655/EEC), as amended by Council Directive 95/63/EC of 5 December 1995. |
| --- | --- |

1)

By providing, in Article 1 of the sole transitional provision of Royal Decree No 1215/1997 of 18 July 1997 laying down the minimum safety and health requirements for the use of work equipment by workers, for an additional adjustment period for work equipment already provided to workers at the undertaking and/or establishment prior to 27 August 1997, the Kingdom of Spain has failed to fulfil its obligations under Article 4(1)(b) of Council Directive 89/665/EEC of 30 November 1989 concerning the minimum safety and health requirements for the use of work equipment by workers at work (second individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC) (89/655/EEC), as amended by Council Directive 95/63/EC of 5 December 1995.

| 2) | The Kingdom of Spain is ordered to pay the costs. |
| --- | --- |

2)

The Kingdom of Spain is ordered to pay the costs.

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(1)  OJ C 135 of 7.6.2003.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/9 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/9

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JUDGMENT OF THE COURT

(Fifth Chamber)

of 16 September 2004

in Case C-404/03 (reference for a preliminary ruling from the Tribunal de grande instance du Mans): Olivier Dupuy and Hervé Rouvre (1)

(Dangerous substances or preparations - Siccatives containing lead - Prohibition of placing on the market - Directives 76/769/CEE and 94/60/CE)

(2004/C 273/16)

Language of the case: French

In Case C-404/03: reference to the Court under Article 234 EC from the Tribunal de grande instance du Mans (France), made by decision of 8 September 2003, received on 29 September 2003, in criminal proceedings against Olivier Dupuy and Hervé Rouvre — the Court (Fifth Chamber), composed of: C. Gulmann, President of the Chamber, S. von Bahr and R. Silva de Lapuerta (Rapporteur), Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, has given a judgment on 16 September 2004, in which it has ruled:

The provisions of Community law relating to restrictions on the placing on the market of dangerous substances or preparations, in particular the provisions of Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations, as amended by European Parliament and Council Directive 94/60/EC of 20 December 1994, prohibit the placing on the market for sale to the general public of siccatives containing lead compounds classified as toxic for reproductive purposes.

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(1)  OJ C 275, 15.11.2003.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/9 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/9

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JUDGMENT OF THE COURT

(Fourth Chamber)

of 16 September 2004

in Case C-423/03: Commission of the European Communities v Republic of Finland (1)

(Failure of a Member State to fulfil obligations - Non-transposition - Directive 2001/18/EC)

(2004/C 273/17)

Language of the case: Finnish

In Case C-423/03, Commission of the European Communities (Agents: U. Wölker and M. Huttunen) v Republic of Finland (Agent: T. Pynnä) — action brought on 3 October 2003 under Article 226 EC for failure to fulfil obligations — the Court (Fourth Chamber) composed of: J.N. Cunha Rodrigues, (President of the Chamber), K. Lenaerts and K. Schiemann (Rapporteur), Judges, Advocate General: M. Poiares Maduro; Registrar: R. Grass, has given a judgment on 16 September 2004, in which it:

| 1. | Declares that, by failing to adopt, within the prescribed period, the laws, regulations, and administrative provisions necessary to comply with Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC, the Republic of Finland has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the prescribed period, the laws, regulations, and administrative provisions necessary to comply with Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC, the Republic of Finland has failed to fulfil its obligations under that directive;

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

2.

Orders the Republic of Finland to pay the costs.

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(1)  OJ C 275 of 15.11.2003.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/9 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/9

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ORDER OF THE COURT

(Sixth Chamber)

of 9 July 2004

in Case C-116/03 P: Augusto Fichtner v Commission of the European Communities (1)

(Appeals - Officials - Disciplinary measure - Removal from post with entitlement to old-age pension - Pursuit of outside activities without prior authorisation)

(2004/C 273/18)

Language of the case: Italian

In Case C-116/03 P: August Fichtner, former official of the Commission of the European Communities, residing at Besozzo (Italy) (Avocats: F. Colussi and M. Tamburini) — appeal against the judgment of the Court of First Instance of the European Communities (Fourth Chamber) of 16 January 2003, Fichtner v Commission (T-75/00 ECR p. II-51), seeking to have the judgment set aside, the other parties in the procedures being: Commission of the European Communities (Agent: J. Currall, assisted by A. Dal Ferro) — the Court (Sixth Chamber), composed of: J.-P. Puissochet, President of the Chamber, F. Macken (Rapporteur) A. Borg Barthet, Judges; P. Léger, Advocate General; R. Grass, Registrar, has given a judgment on 9 July 2004, the operative part of which is as follows:

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

1.

The appeal is dismissed.

| 2. | Mr Fichtner to bear the costs. |
| --- | --- |

2.

Mr Fichtner to bear the costs.

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(1)  OJ C 146 of 21.6.2003.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/10 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/10

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Reference for a preliminary ruling by the Tribunale di Larino — Sezione Distaccata di Termoli — by order of that court of 8 July 2004 in criminal proceedings against Massimiliano Placanica

(Case C-338/04)

(2004/C 273/19)

Reference has been made to the Court of Justice of the European Communities by order of the Tribunale di Larino — Sezione Distaccata di Termoli (Larino District Court, Termoli section, Italy) of 8 July 2004, received at the Court Registry on 6 August 2004, for a preliminary ruling in the case of criminal proceedings against Massimiliano Placanica on the following question:

‘Does the Court of Justice consider Article 4(4a) of Law No 401/89 to be compatible with the principles enshrined in Articles 43 et seq. and 49 of the EEC Treaty concerning the freedom of establishment and the freedom to provide cross-border services, having regard to the difference between the interpretation emerging from the decisions of the European Court of Justice (in particular the judgment in Gambrelli) and the decision of the Corte Suprema di Cassazione, Sezione Uniti in Case No 23271/04? In particular, the Court is requested to rule on the validity of the legislation referred to in the indictment and under which Massimiliano Placanica is charged in Italy’.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/10 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/10

---

Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 26 May 2004 in the case of Centro Equestro da Leziria Grande LDA against Bundesamt für Finanzen

(Case C-345/04)

(2004/C 273/20)

Reference has been made to the Court of Justice of the European Communities by order of the Bundesfinanzhof (Federal Finance Court (Germany)) of 26 May 2004, received at the Court Registry on 12 August 2004, for a preliminary ruling in the case of Centro Equestro da Leziria Grande LDA against Bundesamt für Finanzen (Federal Tax Office) on the following question:

Is it contrary to Article 59 of the Treaty establishing the European Communities if a person with restricted tax liability in Germany who is a national of a Member State may claim repayment of tax deducted at source on his income in Germany only when the operating expenses that have a direct economic connection to that income are higher than half of the income?

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/10 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/10

---

Reference for a preliminary ruling by the Finanzgericht Köln by order of that court of 15 July 2004 in the case of REWE Zentralfinanz e.G., as universal legal successor of ITS Reisen GmbH against Finanzamt Köln-Mitte

(Case C-347/04)

(2004/C 273/21)

Reference has been made to the Court of Justice of the European Communities by order of the Finanzgericht Köln (Finance Court, Cologne) (Germany) of 15 July 2004, received at the Court Registry on 13 August 2004, for a preliminary ruling in the case of REWE Zentralfinanz e.G., as universal legal successor of ITS Reisen GmbH against Finanzamt Köln-Mitte on the following question:

| — | Are Article 52 (now Article 43) in conjunction with Article 58 (now Article 48) and Articles 67-73 and 73b et seq. (now Article 56 et seq.) of the EC Treaty to be interpreted as precluding a rule which — like the rule laid down in Paragraph 2a(1)(3)(a) and Paragraph 2a(2) of the Einkommensteuergesetz which is at issue in the main proceedings — restricts the immediate tax set-off of losses stemming from write-downs to the book value of subsidiaries in other EC countries, where those subsidiaries pursue passive activities within the meaning of the national provision and/or where the subsidiaries pursue active activities within the meaning of the national provision only through their own second-tier subsidiaries, whilst write-downs to the book value of domestic subsidiaries are possible without these restrictions? |
| --- | --- |

—

Are Article 52 (now Article 43) in conjunction with Article 58 (now Article 48) and Articles 67-73 and 73b et seq. (now Article 56 et seq.) of the EC Treaty to be interpreted as precluding a rule which — like the rule laid down in Paragraph 2a(1)(3)(a) and Paragraph 2a(2) of the Einkommensteuergesetz which is at issue in the main proceedings — restricts the immediate tax set-off of losses stemming from write-downs to the book value of subsidiaries in other EC countries, where those subsidiaries pursue passive activities within the meaning of the national provision and/or where the subsidiaries pursue active activities within the meaning of the national provision only through their own second-tier subsidiaries, whilst write-downs to the book value of domestic subsidiaries are possible without these restrictions?

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/11 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/11

---

Reference for a preliminary ruling by the Court of Appeal (England & Wales) (Civil Division), by order of that court dated 17 June 2004, in the case of Boehringer Ingelheim KG and others against Swingward Ltd and another

(Case C-348/04)

(2004/C 273/22)

Reference has been made to the Court of Justice of the European Communities by order of the Court of Appeal (England & Wales) (Civil Division), dated 17 June 2004, which was received at the Court Registry on 12 August 2004 for a preliminary ruling in the case of Boehringer Ingelheim KG and others and Swingward Ltd and another on the following questions:

Reboxed products

| 1. | Where a parallel importer markets in one Member State a pharmaceutical product imported from another Member State in its original internal packaging but with a new exterior carton printed in the language of the Member State of importation (a ‘reboxed’ product):






  (a) | does the importer bear the burden of proving that the new packaging complies with each of the conditions set out in Joined Cases C-427/93, C-429/93 and C-436/93 Bristol-Myers Squibb v Paranova or does the trade mark proprietor bear the burden of proving that those conditions have not been complied with or does the burden of proof vary from condition to condition, and if so how? |
| --- | --- | --- |

1.

Where a parallel importer markets in one Member State a pharmaceutical product imported from another Member State in its original internal packaging but with a new exterior carton printed in the language of the Member State of importation (a ‘reboxed’ product):

(a)

does the importer bear the burden of proving that the new packaging complies with each of the conditions set out in Joined Cases C-427/93, C-429/93 and C-436/93 Bristol-Myers Squibb v Paranova or does the trade mark proprietor bear the burden of proving that those conditions have not been complied with or does the burden of proof vary from condition to condition, and if so how?

| (b) | does the first condition set out in Bristol-Myers Squibb v Paranova as interpreted in Case C-379/97 Upjohn v Paranova and Case C-143/00 Boehringer v Swingward, namely that it must be shown that it is necessary to repackage the product in order that effective market access is not hindered, apply merely to the fact of reboxing (as held by the EFTA Court in Case E-3/02 Paranova Inc v Merck & Co Inc) or does it also apply to the precise manner and style of the reboxing carried out by the parallel importer, and if so how? |
| --- | --- |

(b)

does the first condition set out in Bristol-Myers Squibb v Paranova as interpreted in Case C-379/97 Upjohn v Paranova and Case C-143/00 Boehringer v Swingward, namely that it must be shown that it is necessary to repackage the product in order that effective market access is not hindered, apply merely to the fact of reboxing (as held by the EFTA Court in Case E-3/02 Paranova Inc v Merck & Co Inc) or does it also apply to the precise manner and style of the reboxing carried out by the parallel importer, and if so how?

| (c) | is the fourth condition set out in Bristol-Myers Squibb v Paranova, namely that the presentation of the repackaged product is not such as to be liable to damage the reputation of the trade mark or its owner, only infringed if the packaging is defective, of poor quality or untidy or does it extend to anything which damages the reputation of the trade mark? |
| --- | --- |

(c)

is the fourth condition set out in Bristol-Myers Squibb v Paranova, namely that the presentation of the repackaged product is not such as to be liable to damage the reputation of the trade mark or its owner, only infringed if the packaging is defective, of poor quality or untidy or does it extend to anything which damages the reputation of the trade mark?

| (d) | if the answer to question l(c) is that the fourth condition is infringed by anything which damages the reputation of the trade mark and if either (i) the trade mark is not affixed to the new exterior carton (‘de-branding’) or (ii) the parallel importer applies either his own logo or a house-style or get-up or a get-up used for a number of different products to the new exterior carton (‘co-branding’) must such forms of box design be regarded as damaging to the reputation of the trade mark or is that a question of fact for the national court? |
| --- | --- |

(d)

if the answer to question l(c) is that the fourth condition is infringed by anything which damages the reputation of the trade mark and if either (i) the trade mark is not affixed to the new exterior carton (‘de-branding’) or (ii) the parallel importer applies either his own logo or a house-style or get-up or a get-up used for a number of different products to the new exterior carton (‘co-branding’) must such forms of box design be regarded as damaging to the reputation of the trade mark or is that a question of fact for the national court?

| (e) | If the answer to question l(d) is that it is a question of fact, on whom does the burden of proof lie? |
| --- | --- |

(e)

If the answer to question l(d) is that it is a question of fact, on whom does the burden of proof lie?

Overstickered products

| 2. | Where a parallel importer markets in one Member State a pharmaceutical product imported from another Member State in its original internal and external packaging to which the parallel importer has applied an additional external label printed in the language of the Member State of importation (an ‘overstickered’ product):






  (a) | do the five conditions set out in Bristol-Myers Squibb v Paranova apply at all? |
| --- | --- | --- |

2.

Where a parallel importer markets in one Member State a pharmaceutical product imported from another Member State in its original internal and external packaging to which the parallel importer has applied an additional external label printed in the language of the Member State of importation (an ‘overstickered’ product):

(a)

do the five conditions set out in Bristol-Myers Squibb v Paranova apply at all?

| (b) | If the answer to question 2(a) is yes, does the importer bear the burden of proving that the overstickered packaging complies with each of the conditions set out in Bristol-Myers Squibb v Paranova or does the trade mark proprietor bear the burden of proving that those conditions have not been complied with or does the burden of proof vary from condition to condition? |
| --- | --- |

(b)

If the answer to question 2(a) is yes, does the importer bear the burden of proving that the overstickered packaging complies with each of the conditions set out in Bristol-Myers Squibb v Paranova or does the trade mark proprietor bear the burden of proving that those conditions have not been complied with or does the burden of proof vary from condition to condition?

| (c) | if the answer to question 2(a) is yes, does the first condition set out in Bristol-Myers Squibb v Paranova as interpreted in Upjohn v Paranova and Boehringer v Swingward, namely that it must be shown that it is necessary to repackage the product in order that effective market access is not hindered, apply merely to the fact of overstickering or does it also apply to the precise manner and style of overstickering adopted by the parallel importer? |
| --- | --- |

(c)

if the answer to question 2(a) is yes, does the first condition set out in Bristol-Myers Squibb v Paranova as interpreted in Upjohn v Paranova and Boehringer v Swingward, namely that it must be shown that it is necessary to repackage the product in order that effective market access is not hindered, apply merely to the fact of overstickering or does it also apply to the precise manner and style of overstickering adopted by the parallel importer?

| (d) | if the answer to question 2(a) is yes, is the fourth condition set out in Bristol-Myers Squibb v Paranova, namely that the presentation of the repackaged product is not such as to be liable to damage the reputation of the trade mark or its owner, only infringed if the packaging is defective, of poor quality or untidy or does it extend to anything which damages the reputation of the trade mark? |
| --- | --- |

(d)

if the answer to question 2(a) is yes, is the fourth condition set out in Bristol-Myers Squibb v Paranova, namely that the presentation of the repackaged product is not such as to be liable to damage the reputation of the trade mark or its owner, only infringed if the packaging is defective, of poor quality or untidy or does it extend to anything which damages the reputation of the trade mark?

| (e) | if the answer to question 2(a) is yes and the answer to question 2(d) is that the fourth condition is infringed by anything which damages the reputation of the trade mark, is it damaging to the reputation of a trade mark for this purpose if either (i) the additional label is positioned so as wholly or partially to obscure one of the proprietor's trade marks or (ii) the additional label fails to state that the trade mark in question is a trade mark owned by the proprietor or (iii) the name of the parallel importer is printed in capital letters? |
| --- | --- |

(e)

if the answer to question 2(a) is yes and the answer to question 2(d) is that the fourth condition is infringed by anything which damages the reputation of the trade mark, is it damaging to the reputation of a trade mark for this purpose if either (i) the additional label is positioned so as wholly or partially to obscure one of the proprietor's trade marks or (ii) the additional label fails to state that the trade mark in question is a trade mark owned by the proprietor or (iii) the name of the parallel importer is printed in capital letters?

Notice

| 3. | Where a parallel importer has failed to give notice in respect of a repackaged product as required by the fifth condition of Bristol-Myers Squibb v Paranova, and accordingly has infringed the proprietor's trade mark(s) for that reason only:






  (a) | is every subsequent act of importation of that product an infringement or does the importer only infringe until such time as the proprietor has become aware of the product and the applicable notice period has expired? |
| --- | --- | --- |

3.

Where a parallel importer has failed to give notice in respect of a repackaged product as required by the fifth condition of Bristol-Myers Squibb v Paranova, and accordingly has infringed the proprietor's trade mark(s) for that reason only:

(a)

is every subsequent act of importation of that product an infringement or does the importer only infringe until such time as the proprietor has become aware of the product and the applicable notice period has expired?

| (b) | is the proprietor entitled to claim financial remedies (i.e. damages for infringement or the handing over of all profits made by infringement) by reason of the importer's acts of infringement on the same basis as if the goods had been spurious? |
| --- | --- |

(b)

is the proprietor entitled to claim financial remedies (i.e. damages for infringement or the handing over of all profits made by infringement) by reason of the importer's acts of infringement on the same basis as if the goods had been spurious?

| (c) | is the granting of financial remedies to the proprietor in respect of such acts of infringement by the importer subject to the principle of proportionality? |
| --- | --- |

(c)

is the granting of financial remedies to the proprietor in respect of such acts of infringement by the importer subject to the principle of proportionality?

| (d) | If not, upon what basis should such compensation be assessed given that the products in question were placed on the market within the EEA by the proprietor or with his consent? |
| --- | --- |

(d)

If not, upon what basis should such compensation be assessed given that the products in question were placed on the market within the EEA by the proprietor or with his consent?

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/12 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/12

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Reference for a preliminary ruling by the Rechtbank van Koophandel te Brussel by decision of that court of 29 July 2004 in the case of Lidl Belgium GmbH & Co KG against NV Etablissementen Franz Colruyt

(Case C-356/04)

(2004/C 273/23)

Reference has been made to the Court of Justice of the European Communities by decision of the Rechtbank van Koophandel te Brussel (Brussels Commercial Court) of 29 July 2004, received at the Court Registry on 18 August 2004, for a preliminary ruling in the case of Lidl Belgium GmbH & Co KG against NV Etablissementen Franz Colruyt on the following questions:

| 1. | Must Article 3a(1)(a) of Directive 84/450/EEC (1) (as introduced by Directive 97/55/EC (2) of the European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising) be construed as meaning that the comparison of the general price level of advertisers with that of competitors, in which an extrapolation is made on the basis of a comparison of the prices of a sample of products, is impermissible inasmuch as this creates the impression that the advertiser is cheaper over its entire range of products, whereas the comparison made relates only to a limited sample of products, unless the advertisement makes it possible to establish which and how many products of the advertiser, on the one hand, and of the competitors used in the comparison, on the other, have been compared, and makes it possible to ascertain where each competitor concerned by the comparison is positioned in the comparison and what its prices might be in comparison with those of the advertiser and of the other competitors used in the comparison? |
| --- | --- |

1.

Must Article 3a(1)(a) of Directive 84/450/EEC (1) (as introduced by Directive 97/55/EC (2) of the European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising) be construed as meaning that the comparison of the general price level of advertisers with that of competitors, in which an extrapolation is made on the basis of a comparison of the prices of a sample of products, is impermissible inasmuch as this creates the impression that the advertiser is cheaper over its entire range of products, whereas the comparison made relates only to a limited sample of products, unless the advertisement makes it possible to establish which and how many products of the advertiser, on the one hand, and of the competitors used in the comparison, on the other, have been compared, and makes it possible to ascertain where each competitor concerned by the comparison is positioned in the comparison and what its prices might be in comparison with those of the advertiser and of the other competitors used in the comparison?

| 2. | Must Article 3a(1)(b) of Directive 84/450/EEC (as introduced by Directive 97/55/EC of the European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising) be construed as meaning that comparative advertising is allowed only if the comparison relates to individual goods or services that meet the same needs or are intended for the same purpose, with the exclusion of product selections, even if those selections, on the whole and not necessarily in regard to every sub-division, meet the same needs or are intended for the same purpose? |
| --- | --- |

2.

Must Article 3a(1)(b) of Directive 84/450/EEC (as introduced by Directive 97/55/EC of the European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising) be construed as meaning that comparative advertising is allowed only if the comparison relates to individual goods or services that meet the same needs or are intended for the same purpose, with the exclusion of product selections, even if those selections, on the whole and not necessarily in regard to every sub-division, meet the same needs or are intended for the same purpose?

| 3. | Must Article 3a(1)(c) of Directive 84/450/EEC (as introduced by Directive 97/55/EC of the European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising) be construed as meaning that comparative advertising in which a comparison of the prices of products, or of the general price level, of competitors is made will be objective only if it lists the products and prices of the advertiser and those of all the competitors in the comparison that are being compared and makes it possible to ascertain the prices being charged by the advertiser and its competitors, in which case all products used in the comparison must be expressly indicated for each individual supplier? |
| --- | --- |

3.

Must Article 3a(1)(c) of Directive 84/450/EEC (as introduced by Directive 97/55/EC of the European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising) be construed as meaning that comparative advertising in which a comparison of the prices of products, or of the general price level, of competitors is made will be objective only if it lists the products and prices of the advertiser and those of all the competitors in the comparison that are being compared and makes it possible to ascertain the prices being charged by the advertiser and its competitors, in which case all products used in the comparison must be expressly indicated for each individual supplier?

| 4. | Must Article 3a(1)(c) of Directive 84/450/EEC (as introduced by Directive 97/55/EC of the European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising) be construed as meaning that a feature in comparative advertising will satisfy the requirement of verifiability in that article only if that feature can be verified as to its accuracy by those to whom the advertising is addressed, or is it sufficient if the feature can be verified by third parties to whom the advertising is not addressed? |
| --- | --- |

4.

Must Article 3a(1)(c) of Directive 84/450/EEC (as introduced by Directive 97/55/EC of the European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising) be construed as meaning that a feature in comparative advertising will satisfy the requirement of verifiability in that article only if that feature can be verified as to its accuracy by those to whom the advertising is addressed, or is it sufficient if the feature can be verified by third parties to whom the advertising is not addressed?

| 5. | Must Article 3a(1)(c) of Directive 84/450/EEC (as introduced by Directive 97/55/EC of the European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising) be construed as meaning that the price of products and the general price level of competitors are in themselves verifiable features? |
| --- | --- |

5.

Must Article 3a(1)(c) of Directive 84/450/EEC (as introduced by Directive 97/55/EC of the European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising) be construed as meaning that the price of products and the general price level of competitors are in themselves verifiable features?

---

(1)  OJ L 250 of 19.9.1984, p. 17-20.

(2)  OJ L 290 of 23.10.1997, p. 18-23.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/13 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/13

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Reference for a preliminary ruling by the Tribunale di Vicenza, Sezione Distaccata di Schio by order of that court of 2 August 2004 in the case of Caseificio Valdagnese against Regione Veneto

(Case C-358/04)

(2004/C 273/24)

Reference has been made to the Court of Justice of the European Communities by order of the Tribunale di Vicenza, Sezione Distaccata di Schio (Vicenza District Court, Schio Division) (Italy), of 2 August 2004, which was received at the Court Registry on 17 August 2004, for a preliminary ruling in the case of Caseificio Valdagnese against Regione Veneto.

The Tribunale di Vicenza asks the Court of Justice to give a preliminary ruling on the following question:

‘Are national laws and administrative practice which impose on the purchaser the obligation, failure to fulfil which is subject to penalties, to deduct the amount payable by way of additional levy from the price of the milk paid to the producers who are liable to pay the levy compatible with Article 2(2) of Regulation EEC No 3950/92 (1) of 28 December 1992, as interpreted in the judgment in Case C-288/97 of 29 April 1999, and is Article 2(2) of Regulation EEC No 3950/92, as interpreted by the Court of Justice in the judgment of 29 April 1999, therefore in conflict with Article 5 and 11 of national Law No 468/92 and thus whether failure on the part of the purchaser to exercise the option to deduct the amount payable by way of additional levy form the amount paid to producers may be required of the purchaser by the Member State on pain of penalties in the event of failure to do so?’

---

(1)  Council Regulation (EEC) No 3950/92, of 28 December 1992, establishing an additional levy in the milk and milk products sector OJ 1992 L 405, p. 1.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/13 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/13

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Reference for a preliminary ruling by the Simvoulio tis Epikratias – by order of that court of 29 July 2004 in the case of Mikaniki AE against the Ministry of Culture and against the intervening joint venture entitled ‘J & P – AVAX AE – ARXITEX ATE – YETEM AE’

(Case C-362/04)

(2004/C 273/25)

Reference has been made to the Court of Justice of the European Communities by order of the Simvoulio tis Epikratias (Council of State, 4th Section, Greece) of 29 July 2004, received at the Court Registry on 20 August 2004, for a preliminary ruling in the case of Mikaniki AE against the Ministry of Culture and against the intervening joint venture entitled ‘J & P – AVAX AE – ARXITEX ATE – YETEM AE’ on the following questions:

| (1) | Must Article 30(4) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54) be interpreted as meaning that, in the case of a tendering procedure such as that described in the grounds hereof (offers not accompanied by a justificatory report, indicating the specific discount percentages applied to each group of prices and verification as to whether discounts are at a normal level), the contracting authority is required to give a specific content to the document in which it requests a bidder to provide explanations concerning an offer which has been adjudged abnormally low in regard to a threshold determined by application of a mathematical method having characteristics analogous to those of the mathematical method described in the grounds of this order? |
| --- | --- |

(1)

Must Article 30(4) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54) be interpreted as meaning that, in the case of a tendering procedure such as that described in the grounds hereof (offers not accompanied by a justificatory report, indicating the specific discount percentages applied to each group of prices and verification as to whether discounts are at a normal level), the contracting authority is required to give a specific content to the document in which it requests a bidder to provide explanations concerning an offer which has been adjudged abnormally low in regard to a threshold determined by application of a mathematical method having characteristics analogous to those of the mathematical method described in the grounds of this order?

| (2) | If the reply to the first question is affirmative, is it sufficient, in order to satisfy the requirements of the abovementioned provision of Directive 93/37/EEC, for the document to mention the specific discount offered by the tenderer for one or more groups of prices adjudged by the contracting authority to be problematic or must the latter also indicate the reasons why it regards such discount as problematic by providing a reasoned appraisal concerning the maximum cost for carrying out the relevant works? |
| --- | --- |

(2)

If the reply to the first question is affirmative, is it sufficient, in order to satisfy the requirements of the abovementioned provision of Directive 93/37/EEC, for the document to mention the specific discount offered by the tenderer for one or more groups of prices adjudged by the contracting authority to be problematic or must the latter also indicate the reasons why it regards such discount as problematic by providing a reasoned appraisal concerning the maximum cost for carrying out the relevant works?

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/13 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/13

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Reference for a preliminary ruling by the Verwaltungsgerichtshof, Austria, by decision of that court of 12 August 2004 in the case of (1) Transalpine Ölleitung in Österreich GmbH, (2) Planai-Hochwurzen-Bahnen GmbH, (3) Gerlitzen-Kanzelbahn-Touristik Gesellschaft mbH & CO KG, against (1) the Finanzlandesdirektion für Tirol, (2) the Finanzlandesdirektion für Steiermark, and (3) the Finanzlandesdirektion für Kärnten

(Case C-368/04)

(2004/C 273/26)

Reference has been made to the Court of Justice of the European Communities by order of the Verwaltungsgerichtshof (Higher Administrative Court) (Austria) of 12 August 2004, received at the Court Registry on 24 August 2004, for a preliminary ruling in the case of (1) Transalpine Ölleitung in Österreich GmbH, (2) Planai-Hochwurzen-Bahnen GmbH, and (3) Gerlitzen-Kanzelbahn-Touristik Gesellschaft mbH & CO KG, against (1) the Finanzlandesdirektion für Tirol, (2) the Finanzlandesdirektion für Steiermark and (3) the Finanzlandesdirektion für Kärnten, on the following questions:

| 1. | Does the prohibition on putting measures into effect under Article 88(3) EC preclude the application of a national legal provision which excludes businesses whose activity is not shown to consist primarily in the manufacture of goods from energy tax rebates and which must therefore be classified as aid within the meaning of Article 87 EC, but which was not notified to the Commission prior to the national entry into force of the rules, even where the Commission has found the measure to be compatible with the common market under Article 87(3) EC for a period in the past and the application for reimbursement relates to taxes payable for that period? |
| --- | --- |

1.

Does the prohibition on putting measures into effect under Article 88(3) EC preclude the application of a national legal provision which excludes businesses whose activity is not shown to consist primarily in the manufacture of goods from energy tax rebates and which must therefore be classified as aid within the meaning of Article 87 EC, but which was not notified to the Commission prior to the national entry into force of the rules, even where the Commission has found the measure to be compatible with the common market under Article 87(3) EC for a period in the past and the application for reimbursement relates to taxes payable for that period?

| 2. | If so,
  in such a case does the prohibition on putting measures into effect require a rebate even in cases where the applications were made by service businesses after the adoption of the Commission's decision for assessment periods prior to that date? |
| --- | --- |

2.

If so,

in such a case does the prohibition on putting measures into effect require a rebate even in cases where the applications were made by service businesses after the adoption of the Commission's decision for assessment periods prior to that date?

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/14 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/14

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Reference for a preliminary ruling by the VAT and Duties Tribunals, London Tribunal Centre, by direction of that court dated 24 August 2004, in the case of Hutchison 3G UK Ltd, mmO2 plc, Orange 3G Ltd, T-Mobile (UK) Ltd, Vodafone Group Services Ltd against Commissioners of Customs and Excise

(Case C-369/04)

(2004/C 273/27)

Reference has been made to the Court of Justice of the European Communities by direction of the VAT and Duties Tribunals, London Tribunal Centre, dated 24 August 2004, which was received at the Court Registry on 26 August 2004 for a preliminary ruling in the case of Hutchison 3G UK Ltd, mmO2 plc, Orange 3G Ltd, T-Mobile (UK) Ltd, Vodafone Group Services Ltd and Commissioners of Customs and Excise on the following questions:

| 1. | In the circumstances set out in the Agreed Statement of Facts, is the term ‘economic activity’ for the purposes of Articles 4(1) and 4(2) of the Sixth Directive (1) to be interpreted as including the issuing of the Licences by the Secretary of State by way of an auction of rights to use telecommunications equipment in defined parts of the electro-magnetic spectrum (the Activity), and what considerations are relevant to that question? |
| --- | --- |

1.

In the circumstances set out in the Agreed Statement of Facts, is the term ‘economic activity’ for the purposes of Articles 4(1) and 4(2) of the Sixth Directive (1) to be interpreted as including the issuing of the Licences by the Secretary of State by way of an auction of rights to use telecommunications equipment in defined parts of the electro-magnetic spectrum (the Activity), and what considerations are relevant to that question?

| 2. | In the circumstances set out in the Agreed Statement of Facts what considerations are relevant to the question whether or not the Secretary of State, in conducting the Activity, was acting as a ‘public authority’ within the meaning of Article 4(5) of the Sixth Directive? |
| --- | --- |

2.

In the circumstances set out in the Agreed Statement of Facts what considerations are relevant to the question whether or not the Secretary of State, in conducting the Activity, was acting as a ‘public authority’ within the meaning of Article 4(5) of the Sixth Directive?

| 3. | In the circumstances set out in the Agreed Statement of Facts, can the Activity be (i) in part an economic activity and in part not, and/or (ii) partly carried out by a body governed by public law acting as a public authority and partly not, with the result that the activity would be partly chargeable to VAT under the Sixth Directive and partly not? |
| --- | --- |

3.

In the circumstances set out in the Agreed Statement of Facts, can the Activity be (i) in part an economic activity and in part not, and/or (ii) partly carried out by a body governed by public law acting as a public authority and partly not, with the result that the activity would be partly chargeable to VAT under the Sixth Directive and partly not?

| 4. | How likely and how close in time to the carrying out of an activity such as the Activity does a ‘significant distortion of competition’ within the meaning of the second sub-paragraph of Article 4(5) of the Sixth Directive have to be in order for the person carrying out that activity to be required by that sub-paragraph to be considered a taxable person in respect of that activity? To what extent, if any, does the principle of fiscal neutrality bear on that question? |
| --- | --- |

4.

How likely and how close in time to the carrying out of an activity such as the Activity does a ‘significant distortion of competition’ within the meaning of the second sub-paragraph of Article 4(5) of the Sixth Directive have to be in order for the person carrying out that activity to be required by that sub-paragraph to be considered a taxable person in respect of that activity? To what extent, if any, does the principle of fiscal neutrality bear on that question?

| 5. | Does the word ‘telecommunications’ in Annex D to the Sixth Directive (which is referred to in the third sub-paragraph of Article 4(5) of the Sixth Directive) include the issuing of the Licenses by the Secretary of State by way of an auction of rights to use telecommunications equipment in defined parts of the electro-magnetic spectrum, in the circumstances set out in the Agreed Statement of Facts? |
| --- | --- |

5.

Does the word ‘telecommunications’ in Annex D to the Sixth Directive (which is referred to in the third sub-paragraph of Article 4(5) of the Sixth Directive) include the issuing of the Licenses by the Secretary of State by way of an auction of rights to use telecommunications equipment in defined parts of the electro-magnetic spectrum, in the circumstances set out in the Agreed Statement of Facts?

| 6. | Where (i) a Member State chooses to implement Articles 4(1) and 4(5) of the Sixth Directive by legislation conferring on a Government department (such as, in this case, the UK Treasury) a statutory power to make directions specifying which goods or services supplied by Government departments are to be treated as taxable supplies and (ii) that Government department makes, or purports to make, pursuant to that statutory power, directions specifying that certain supplies are taxable: is the principle set out in Case C-106/89 Marleasing [1990] ECR 1-4135, paragraph 8 relevant to the interpretation of the domestic legislation and of those Directions (and if so, how)? |
| --- | --- |

6.

Where (i) a Member State chooses to implement Articles 4(1) and 4(5) of the Sixth Directive by legislation conferring on a Government department (such as, in this case, the UK Treasury) a statutory power to make directions specifying which goods or services supplied by Government departments are to be treated as taxable supplies and (ii) that Government department makes, or purports to make, pursuant to that statutory power, directions specifying that certain supplies are taxable: is the principle set out in Case C-106/89 Marleasing [1990] ECR 1-4135, paragraph 8 relevant to the interpretation of the domestic legislation and of those Directions (and if so, how)?

---

(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, 13.6.1977, p. 1).

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/15 |
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6.11.2004

EN

Official Journal of the European Union

C 273/15

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Action brought on 30 August 2004 by the Commission of the European Communities against the Italian Republic

(Case C-371/04)

(2004/C 273/28)

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 30 August 2004 by the Commission of the European Communities, represented by Gérard Rozet and Antonio Aresu, acting as Agents.

The applicant claims that the Court should:

| — | declare that, by not taking account of the professional experience and seniority acquired in another Member State by a Community worker employed in the Italian public service, the Italian Republic has failed to fulfil its obligations under Articles 10 EC and 39 EC and Article 7(1) of Regulation No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (1); |
| --- | --- |

—

declare that, by not taking account of the professional experience and seniority acquired in another Member State by a Community worker employed in the Italian public service, the Italian Republic has failed to fulfil its obligations under Articles 10 EC and 39 EC and Article 7(1) of Regulation No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (1);

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

—

order the Italian Republic to pay the costs.

Pleas in law and main arguments:

The Commission received complaints that, in calculating the appropriate professional remuneration, the relevant Italian authorities refused to take account of the professional experience or seniority which the complainants had acquired in another Member State.

In the light of the case-law of the Court of Justice, the Commission finds that the principle of equal treatment of Community workers laid down in Article 39 of the EC Treaty and Article 7(1) of Regulation No 1612/68 must be interpreted as meaning that the earlier periods of comparable occupation, acquired by Community workers in the public sector of another Member State, must be taken into consideration by the Italian administration in calculating the appropriate professional remuneration as if it were experience acquired in the Italian system.

The Commission therefore finds that the Italian Republic has failed to fulfil its obligations under Article 39 EC and Article 7(1) of Regulation No 1612/68.

The Commission also finds that the fact that the Italian authorities failed to reply to its requests for information has made more difficult the achievement of the Commission's tasks under the Treaty, in breach of the duty of cooperation under Article 10 EC.

---

(1)  OJ, English special edition, Series I 1968(II) p. 475.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/15 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/15

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Reference for a preliminary ruling by the Court of Appeal (England & Wales) (Civil Division), by order of that court dated 12 July 2004, in the case of The Queen on the application of Yvonne Watts against 1) Bedford Primary Care Trust 2) Secretary of State for Health

(Case C-372/04)

(2004/C 273/29)

Reference has been made to the Court of Justice of the European Communities by order of the Court of Appeal (England & Wales) (Civil Division), dated 12 July 2004, which was received at the Court Registry on 27 August 2004 for a preliminary ruling in the case of The Queen on the application of Yvonne Watts and 1) Bedford Primary Care Trust 2) Secretary of State for Health on the following questions:

Question 1

Having regard to the nature of the NHS and its position under national law, is Article 49 EC, read in the light of Geraets Smits, Muller-Faure and Inizan to be interpreted as meaning that in principle persons ordinarily resident in the United Kingdom enjoy an entitlement in EU law to receive hospital treatment in other Member States at the expense of the United Kingdom National Health Service (‘the NHS’).

In particular on the true interpretation of Article 49 EC:

| (a) | Is there any distinction between a State funded national health service such as the NHS and insurance funds such as the Netherlands ZFW scheme, in particular having regard to the fact that the NHS has no fund out of which payment must be made? |
| --- | --- |

(a)

Is there any distinction between a State funded national health service such as the NHS and insurance funds such as the Netherlands ZFW scheme, in particular having regard to the fact that the NHS has no fund out of which payment must be made?

| (b) | Is the NHS obliged to authorise and pay for such treatment in another Member State, notwithstanding that it is not obliged to authorise and pay for such treatment to be carried out privately by a United Kingdom service provider? |
| --- | --- |

(b)

Is the NHS obliged to authorise and pay for such treatment in another Member State, notwithstanding that it is not obliged to authorise and pay for such treatment to be carried out privately by a United Kingdom service provider?

| (c) | Is it relevant if the patient secures the treatment independently of the relevant NHS body, and without prior authorization or notification? |
| --- | --- |

(c)

Is it relevant if the patient secures the treatment independently of the relevant NHS body, and without prior authorization or notification?

Question 2

In answering Question 1, is it material whether hospital treatment provided by the NHS is itself the provision of services within Article 49 EC?

If so, and in the circumstances set out in the Statement of Facts, are Articles 48, 49 and 50 EC to be interpreted as meaning that in principle;

| (1) | the provision of hospital treatment by NHS bodies constitutes the provision of services within Article 49 EC; |
| --- | --- |

(1)

the provision of hospital treatment by NHS bodies constitutes the provision of services within Article 49 EC;

| (2) | a patient receiving hospital treatment under the NHS as such exercises a freedom to receive services within Article 49 EC; and |
| --- | --- |

(2)

a patient receiving hospital treatment under the NHS as such exercises a freedom to receive services within Article 49 EC; and

| (3) | NHS bodies providing hospital treatment are services providers within Articles 48 and 50 EC? |
| --- | --- |

(3)

NHS bodies providing hospital treatment are services providers within Articles 48 and 50 EC?

Question 3

If Article 49 EC applies to the NHS, may it or the Secretary of State rely as objective justification for refusing prior authorisation for hospital treatment in another Member State on:

| (a) | the fact that authorisation would seriously undermine the NHS system of administering medical priorities through waiting lists; |
| --- | --- |

(a)

the fact that authorisation would seriously undermine the NHS system of administering medical priorities through waiting lists;

| (b) | the fact that authorisation would permit patients with less urgent medical needs to gain priority over patients with more urgent medical needs; |
| --- | --- |

(b)

the fact that authorisation would permit patients with less urgent medical needs to gain priority over patients with more urgent medical needs;

| (c) | the fact that authorisation would have the effect of diverting resources to pay for less urgent treatment for those who are willing to travel abroad thus adversely affecting others who do not wish or are not able to travel abroad or increasing costs of NHS bodies; |
| --- | --- |

(c)

the fact that authorisation would have the effect of diverting resources to pay for less urgent treatment for those who are willing to travel abroad thus adversely affecting others who do not wish or are not able to travel abroad or increasing costs of NHS bodies;

| (d) | the fact that authorisation may require the United Kingdom to provide additional funding for the NHS budget or to restrict the range of treatments available under the NHS; |
| --- | --- |

(d)

the fact that authorisation may require the United Kingdom to provide additional funding for the NHS budget or to restrict the range of treatments available under the NHS;

| (e) | the comparative costs of the treatment and the incidental costs thereof in the other Member State? |
| --- | --- |

(e)

the comparative costs of the treatment and the incidental costs thereof in the other Member State?

Question 4

In determining whether treatment is available without undue delay for the purposes of Article 49 EC, to what extent is it necessary or permissible to have regard in particular to the following:

| (a) | waiting times; |
| --- | --- |

(a)

waiting times;

| (b) | the clinical priority accorded to the treatment by the relevant NHS body; |
| --- | --- |

(b)

the clinical priority accorded to the treatment by the relevant NHS body;

| (c) | the management of the provision of hospital care in accordance with priorities aimed at giving best effect to finite resources; |
| --- | --- |

(c)

the management of the provision of hospital care in accordance with priorities aimed at giving best effect to finite resources;

| (d) | the fact that treatment under the NHS is provided free at the point of delivery; |
| --- | --- |

(d)

the fact that treatment under the NHS is provided free at the point of delivery;

| (e) | the individual medical condition of the patient, and the history and probable course of the disease in respect of which that patient seeks treatment? |
| --- | --- |

(e)

the individual medical condition of the patient, and the history and probable course of the disease in respect of which that patient seeks treatment?

Question 5

On the proper interpretation of Article 22(1)(c) of Regulation 1408/71 (1) and in particular the words ‘within the time normally necessary for obtaining the treatment in question’:

| (a) | Are the applicable criteria identical with those applicable in determining questions of undue delay for the purposes of Article 49 EC? |
| --- | --- |

(a)

Are the applicable criteria identical with those applicable in determining questions of undue delay for the purposes of Article 49 EC?

| (b) | If not, to what extent is it necessary or permissible to have regard to the matters set out in question 4? |
| --- | --- |

(b)

If not, to what extent is it necessary or permissible to have regard to the matters set out in question 4?

Question 6

In circumstances where a Member State is obliged in EU law to fund the hospital treatment in other Member States of persons ordinarily resident in the first Member State, is the cost of such treatment to be calculated under Article 22 of Regulation 1408/71 by reference to the legislation of the Member State where the treatment is provided or under Article 49 EC by reference to the legislation of the Member State of residence?

In each case:

| (a) | What is the precise extent of the obligation to pay or reimburse the cost, in particular where, as in the case of the United Kingdom, hospital treatment is provided to patients free at the point of delivery and there is no nationally set tariff for reimbursement of patients for the cost of treatment? |
| --- | --- |

(a)

What is the precise extent of the obligation to pay or reimburse the cost, in particular where, as in the case of the United Kingdom, hospital treatment is provided to patients free at the point of delivery and there is no nationally set tariff for reimbursement of patients for the cost of treatment?

| (b) | Is the obligation limited to the actual cost of providing the same or equivalent treatment in the first Member State? |
| --- | --- |

(b)

Is the obligation limited to the actual cost of providing the same or equivalent treatment in the first Member State?

| (c) | Does it include an obligation to meet travel and accommodation costs? |
| --- | --- |

(c)

Does it include an obligation to meet travel and accommodation costs?

Question 7

Are Article 49 EC and Article 22 of Regulation 1408/71 to be interpreted as imposing an obligation on Member States to fund hospital treatment in other Member States without reference to budgetary constraints and, if so, are these requirements compatible with the Member States' responsibility for the organisation and delivery of health services and medical care, as recognised under Article 152(5) EC?

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(1)  Regulation (EEC) No 1408/71 of the Council, of 14 June 1971, on the application of social security schemes to employed persons and their families moving within the Community.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/17 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/17

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Reference for a preliminary ruling by the High Court of Justice (England & Wales) (Chancery Division), by order of that court dated 25 August 2004, in the case of Test Claimants in Class IV of the ACT Group Litigation against Commissioners of Inland Revenue

(Case C-374/04)

(2004/C 273/30)

Reference has been made to the Court of Justice of the European Communities by order of the High Court of Justice (England & Wales) (Chancery Division), dated 25 August 2004, which was received at the Court Registry on 30 August 2004 for a preliminary ruling in the case of Test Claimants in Class IV of the ACT Group Litigation and Commissioners of Inland Revenue, on the following questions:

| 1. | Is it contrary to Article 43 EC or 56 EC (having regard to Articles 57 EC and 58 EC) (or their predecessor provisions):






  (a) | For Member State A (such as the United Kingdom)






  (i) | to enact and keep in force legislation which confers an entitlement to a full tax credit in respect of dividends paid by companies resident in Member State A (‘relevant dividends’) to individual shareholders resident in Member State A; |
| --- | --- | --- | --- |

1.

Is it contrary to Article 43 EC or 56 EC (having regard to Articles 57 EC and 58 EC) (or their predecessor provisions):

(a)

For Member State A (such as the United Kingdom)

(i)

to enact and keep in force legislation which confers an entitlement to a full tax credit in respect of dividends paid by companies resident in Member State A (‘relevant dividends’) to individual shareholders resident in Member State A;

| (ii) | to give effect to a provision in double taxation conventions concluded with certain other Member States and third countries which confers an entitlement to a full tax credit (less tax as provided for in those conventions) in respect of relevant dividends to individual shareholders resident in those other Member States and third countries; |
| --- | --- |

(ii)

to give effect to a provision in double taxation conventions concluded with certain other Member States and third countries which confers an entitlement to a full tax credit (less tax as provided for in those conventions) in respect of relevant dividends to individual shareholders resident in those other Member States and third countries;

but not to confer an entitlement to any tax credit (whether full or partial) in respect of relevant dividends when paid by a subsidiary resident in Member State A (such as the United Kingdom) to a parent company resident in Member State B (such as Germany) either under domestic provisions or under the terms of the double taxation convention between those States;

| (b) | For Member State A (such as the United Kingdom) to give effect to a provision in the applicable double taxation convention conferring an entitlement to a partial tax credit in respect of relevant dividends on a parent company resident in Member State C (such as the Netherlands), but not to confer such an entitlement on a parent company resident in Member State B (such as Germany), where there is no provision for a partial tax credit in the double taxation convention between Member State A and Member State B; |
| --- | --- |

(b)

For Member State A (such as the United Kingdom) to give effect to a provision in the applicable double taxation convention conferring an entitlement to a partial tax credit in respect of relevant dividends on a parent company resident in Member State C (such as the Netherlands), but not to confer such an entitlement on a parent company resident in Member State B (such as Germany), where there is no provision for a partial tax credit in the double taxation convention between Member State A and Member State B;

| (c) | For Member State A (such as the United Kingdom) not to confer an entitlement to a partial tax credit in respect of relevant dividends on a company resident in Member State C (such as the Netherlands) which is controlled by a company resident in Member State B (such as Germany) when Member State A gives effect to provisions in double taxation conventions which confer such an entitlement:






  (1) | on companies resident in Member State C which are controlled by residents of Member State C; |
| --- | --- | --- |

(c)

For Member State A (such as the United Kingdom) not to confer an entitlement to a partial tax credit in respect of relevant dividends on a company resident in Member State C (such as the Netherlands) which is controlled by a company resident in Member State B (such as Germany) when Member State A gives effect to provisions in double taxation conventions which confer such an entitlement:

(1)

on companies resident in Member State C which are controlled by residents of Member State C;

| (2) | on companies resident in Member State C which are controlled by residents of Member State D (such as Italy) where there is a provision conferring entitlement to a partial tax credit in respect of relevant dividends in the double taxation convention between Member State A and Member State D; |
| --- | --- |

(2)

on companies resident in Member State C which are controlled by residents of Member State D (such as Italy) where there is a provision conferring entitlement to a partial tax credit in respect of relevant dividends in the double taxation convention between Member State A and Member State D;

| (3) | on companies resident in Member State D irrespective of who controls those companies? |
| --- | --- |

(3)

on companies resident in Member State D irrespective of who controls those companies?

| (d) | Does it make any difference to the answer to Question l(c) that the company resident in Member State C is controlled not by a company resident in Member State B, but by a company resident in a third country? |
| --- | --- |

(d)

Does it make any difference to the answer to Question l(c) that the company resident in Member State C is controlled not by a company resident in Member State B, but by a company resident in a third country?

| 2. | If the answer to all or any part of Question l (a) to (c) is in the affirmative, what principles does Community law lay down with regard to the Community rights and remedies available in the circumstances set out in those questions? In particular:






  (a) | Is Member State A obliged to pay:






  i. | The full tax credit or an amount equivalent thereto; or |
| --- | --- | --- | --- |

2.

If the answer to all or any part of Question l (a) to (c) is in the affirmative, what principles does Community law lay down with regard to the Community rights and remedies available in the circumstances set out in those questions? In particular:

(a)

Is Member State A obliged to pay:

i.

The full tax credit or an amount equivalent thereto; or

| ii. | The partial tax credit or an amount equivalent thereto; or |
| --- | --- |

ii.

The partial tax credit or an amount equivalent thereto; or

| iii. | The full or partial tax credit, or an amount equivalent thereto:






  1. | net of any extra income tax payable or which would have been payable if the dividend paid to the relevant claimant had attracted a tax credit; |
| --- | --- | --- |

iii.

The full or partial tax credit, or an amount equivalent thereto:

1.

net of any extra income tax payable or which would have been payable if the dividend paid to the relevant claimant had attracted a tax credit;

| 2. | net of such tax calculated on some other basis? |
| --- | --- |

2.

net of such tax calculated on some other basis?

| (b) | To whom should such payment be made:






  i. | The relevant parent company in Member State B or Member State C; or |
| --- | --- | --- |

(b)

To whom should such payment be made:

i.

The relevant parent company in Member State B or Member State C; or

| ii. | The relevant subsidiary in Member State A? |
| --- | --- |

ii.

The relevant subsidiary in Member State A?

| (c) | Is the right to such payment:






  i. | A right to reimbursement of sums unduly levied such that repayment is a consequence of, and an adjunct to, the right conferred by Articles 43 and/or 56; and/or |
| --- | --- | --- |

(c)

Is the right to such payment:

i.

A right to reimbursement of sums unduly levied such that repayment is a consequence of, and an adjunct to, the right conferred by Articles 43 and/or 56; and/or

| ii. | A right to compensation or damages such that the conditions for recovery laid down in Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur and Factortame must be satisfied; and/or |
| --- | --- |

ii.

A right to compensation or damages such that the conditions for recovery laid down in Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur and Factortame must be satisfied; and/or

| iii. | A right to recover a benefit unduly denied and, if so:






  1. | is such a right a consequence of, and an adjunct to, the right conferred by Articles 43 and/or 56; or |
| --- | --- | --- |

iii.

A right to recover a benefit unduly denied and, if so:

1.

is such a right a consequence of, and an adjunct to, the right conferred by Articles 43 and/or 56; or

| 2. | must the conditions for recovery laid down in Joined Cases C- 46/93 and C-48/93 Brasserie du Pecheur and Factortame be satisfied; or |
| --- | --- |

2.

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

| 3. | must some other conditions be met? |
| --- | --- |

3.

must some other conditions be met?

| (d) | Does it make any difference for the purposes of Question 2(c) above whether as a matter of the domestic law of State A the claims are brought as restitutionary claims or are brought or have to be brought as claims for damages? |
| --- | --- |

(d)

Does it make any difference for the purposes of Question 2(c) above whether as a matter of the domestic law of State A the claims are brought as restitutionary claims or are brought or have to be brought as claims for damages?

| (e) | In order to recover, is it necessary for the company making the claim to establish that it, or its parent, would have claimed a tax credit (full or partial as the case may be) if it had known that under Community law it was entitled to do so? |
| --- | --- |

(e)

In order to recover, is it necessary for the company making the claim to establish that it, or its parent, would have claimed a tax credit (full or partial as the case may be) if it had known that under Community law it was entitled to do so?

| (f) | Does it make any difference to the answer to Question 2(a) that in accordance with the ruling of the Court of Justice in Joined Cases C-397/98 and C-410/98 Hoechst and Metallgesellschaft the relevant subsidiary in Member State A may have been reimbursed or may be entitled in principle to reimbursement of, or in respect of, advance corporation tax in relation to the dividend paid to the relevant parent company in Member State B or Member State C? |
| --- | --- |

(f)

Does it make any difference to the answer to Question 2(a) that in accordance with the ruling of the Court of Justice in Joined Cases C-397/98 and C-410/98 Hoechst and Metallgesellschaft the relevant subsidiary in Member State A may have been reimbursed or may be entitled in principle to reimbursement of, or in respect of, advance corporation tax in relation to the dividend paid to the relevant parent company in Member State B or Member State C?

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

(g)

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

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/18 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/18

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Reference for a preliminary ruling by the Court of Appeal (England and Wales) (Civil Division), by order of that court dated 30 July 2004, in the case of (1) Commissioners of Customs and Excise (2) H.M. Attorney-General against Federation of Technological Industries and 53 others

(Case C-384/04)

(2004/C 273/31)

Reference has been made to the Court of Justice of the European Communities by an order of the Court of Appeal (England and Wales) (Civil Division) dated 30 July 2004, which was received at the Court Registry on 4 September 2004, for a preliminary ruling in the case of (1) Commissioners of Customs and Excise (2) H.M. Attorney-General against Federation of Technological Industries and 53 others, on the following questions:

| 1. | Does Art. 21.3 of Council Directive 77/388/EEC (1) as amended by Council Directive 2000/65/EC permit Member States to provide that any person may be made jointly and severally liable for payment of tax with any person who is made so liable by Art. 21.1 or 21.2, subject only to the general principles of Community law namely that such a measure must be objectively justifiable, rational, proportionate and legally certain? |
| --- | --- |

1.

Does Art. 21.3 of Council Directive 77/388/EEC (1) as amended by Council Directive 2000/65/EC permit Member States to provide that any person may be made jointly and severally liable for payment of tax with any person who is made so liable by Art. 21.1 or 21.2, subject only to the general principles of Community law namely that such a measure must be objectively justifiable, rational, proportionate and legally certain?

| 2. | Does Art. 22(8) of the Directive permit Member States to provide that any person may be made so liable or to provide that one person may be required to provide security for tax due from another subject only to the aforesaid general principles? |
| --- | --- |

2.

Does Art. 22(8) of the Directive permit Member States to provide that any person may be made so liable or to provide that one person may be required to provide security for tax due from another subject only to the aforesaid general principles?

| 3. | If the answer to question 1 is no, what limits, other than those imposed by the aforesaid general principles, are there on the power conferred by Art. 21.3? |
| --- | --- |

3.

If the answer to question 1 is no, what limits, other than those imposed by the aforesaid general principles, are there on the power conferred by Art. 21.3?

| 4. | If the answer to question 2 is no, what limits, other than those imposed by the aforesaid general principles, are there on the power conferred by Art. 22(8)? |
| --- | --- |

4.

If the answer to question 2 is no, what limits, other than those imposed by the aforesaid general principles, are there on the power conferred by Art. 22(8)?

| 5. | Are member states precluded by the Directive as amended from providing for joint and several liability of taxpayers or from requiring one taxpayer to provide security for tax due from another in order to prevent abuse of the VAT system and the protection of revenues properly due under that system, if such measures comply with the aforesaid general principles? |
| --- | --- |

5.

Are member states precluded by the Directive as amended from providing for joint and several liability of taxpayers or from requiring one taxpayer to provide security for tax due from another in order to prevent abuse of the VAT system and the protection of revenues properly due under that system, if such measures comply with the aforesaid general principles?

---

(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, 13.6.1977, p. 1).

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/19 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/19

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Action brought on 10 September 2004 by the Commission of the European Communities against the French Republic

(Case C-389/04)

(2004/C 273/32)

An action against the French Republic was brought before the Court of Justice of the European Communities on 10 September 2004 by the Commission of the European Communities, represented by A. Bordes and K. Simonssen, acting as Agents, with an address for service in Luxembourg.

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

| — | that firstly, by failing to transpose correctly the first paragraph of Article 22 of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (1), concerning the requirement of operational independence as between the national regulatory authority and postal operators, and by maintaining in force legislation which does not guarantee the regulatory body of the postal sector sufficient operational independence vis-à-vis the public postal operator, La Poste, |
| --- | --- |

—

that firstly, by failing to transpose correctly the first paragraph of Article 22 of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (1), concerning the requirement of operational independence as between the national regulatory authority and postal operators, and by maintaining in force legislation which does not guarantee the regulatory body of the postal sector sufficient operational independence vis-à-vis the public postal operator, La Poste,

| — | and that secondly, by failing to transpose within the period prescribed Directive 2002/39/EC of the European Parliament and of the Council of 10 June 2002 amending Directive 97/67/EC with regard to the further opening to competition of Community postal services (2), |
| --- | --- |

—

and that secondly, by failing to transpose within the period prescribed Directive 2002/39/EC of the European Parliament and of the Council of 10 June 2002 amending Directive 97/67/EC with regard to the further opening to competition of Community postal services (2),

| — | the French Republic has failed to fulfil its obligations under the first paragraph of Article 22 and Article 24 of Directive 97/67/EC, and Article 2 of Directive 2002/39/EC. |
| --- | --- |

—

the French Republic has failed to fulfil its obligations under the first paragraph of Article 22 and Article 24 of Directive 97/67/EC, and Article 2 of Directive 2002/39/EC.

order the French Republic to pay the costs.

Pleas in law and main arguments:

Pursuant to Article 22 of Directive 97/67/EC, the French Republic has designated the Minister for Economic Affairs, Finance and Industry, who is the minister responsible for postal services, as the national regulatory authority for the postal sector. At the same time, this minister is head of the directorates-general for industry, information technology and postal services (DIGITIP) set up within the Ministry of Economic Affairs, Finance and Industry, which performs the duties of supervising La Poste through its subdirectorate for postal services. In the context of a public undertaking, the concept of supervision encompasses certain tasks and responsibilities, connected with the exercise of the right to property and with the economic and financial performance of La Poste, such as the establishment of strategic guidelines, the services to be offered in addition to the universal service and pricing policy in relation to such services, involvement in the selection of board members of the undertaking, acquisition of an interest in other undertakings etc., whose performance should be kept separate from regulatory tasks in order to comply with the requirement of operational independence as laid down by the Postal Directive. This requirement aims to preclude any risk of a conflict of interests arising between the national regulatory authority responsible for adopting legislation applicable to the postal sector and for verifying its implementation, and undertakings offering goods and services in this sector. In the case in question such a conflict of interests exists, since the two tasks are carried out within the same ministry. Consequently, the effectiveness of Article 22, first paragraph, of Directive 97/67/EC is not guaranteed.

Furthermore, the time-limit for transposition of Directive 2002/39/EC expired on 31 December 2002.

---

(1)  OJ L 15, 21.1.1998, p. 14.

(2)  OJ L 176, 5.7.2002, p. 21.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/19 |
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6.11.2004

EN

Official Journal of the European Union

C 273/19

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Reference for a preliminary ruling by the Regeringsrätten (Supreme Administrative Court) by decision of that court of 7 September 2004 in the case of GöteborgsOperan AB v Skatteverket

(Case C-390/04)

(2004/C 273/33)

Reference has been made to the Court of Justice of the European Communities by order of the Regeringsrätten (Supreme Administrative Court) (Sweden) of 7 September 2004, received at the Court Registry on 13 September 2004, for a preliminary ruling in the case of GöteborgsOperan AB against Skatteverket on the following questions:

| 1. | Is it compatible with the provisions of Article 17 and the second indent of the first subparagraph of Article 19(1) of the Sixth Directive (1) for subsidies such as those mentioned in the latter provision to be taken into account when determining the right to deduct input tax also in cases where the input tax relates to goods or services that are solely to be used for transactions in respect of which value added tax is otherwise deductible?
  If the answer to the first question is yes, an answer to the following questions is also requested. |
| --- | --- |

1.

Is it compatible with the provisions of Article 17 and the second indent of the first subparagraph of Article 19(1) of the Sixth Directive (1) for subsidies such as those mentioned in the latter provision to be taken into account when determining the right to deduct input tax also in cases where the input tax relates to goods or services that are solely to be used for transactions in respect of which value added tax is otherwise deductible?

If the answer to the first question is yes, an answer to the following questions is also requested.

| 2. | Is it compatible with the provision on subsidies in the second indent of the first subparagraph of Article 19(1) of the Sixth Directive, for reasons of equal competition or for other reasons, to apply the provision only within certain sectors specially designated by the Member State? |
| --- | --- |

2.

Is it compatible with the provision on subsidies in the second indent of the first subparagraph of Article 19(1) of the Sixth Directive, for reasons of equal competition or for other reasons, to apply the provision only within certain sectors specially designated by the Member State?

| 3. | Is the provision on subsidies in the second indent of the first subparagraph of Article 19(1) of the Sixth Directive to be regarded as including also such economic support as is given on a continuous basis by a regional authority to a company wholly owned by it so that the company may carry out such cultural activity as might be carried out directly by the regional authority? Is it of any significance if the support is paid by another company owned by the regional authority and which is a parent company of the first company? |
| --- | --- |

3.

Is the provision on subsidies in the second indent of the first subparagraph of Article 19(1) of the Sixth Directive to be regarded as including also such economic support as is given on a continuous basis by a regional authority to a company wholly owned by it so that the company may carry out such cultural activity as might be carried out directly by the regional authority? Is it of any significance if the support is paid by another company owned by the regional authority and which is a parent company of the first company?

---

(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 1977 L 145, p. 1).

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/20 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/20

---

Reference for a preliminary ruling by the Simvoulio tis Epikratias by order of that court of 6 July 2004 in the case of Ipourgos Ikonomikon and Proistamenos D.O.I. Amfissas against Charilaos Georgakis

(Case C-391/04)

(2004/C 273/34)

Reference has been made to the Court of Justice of the European Communities by order of the Simvoulio tis Epikratias (Council of State, Greece) of 6 July 2004 received at the Court Registry on 14 September 2004, for a preliminary ruling in the case of Ipourgos Ikonomikon and Proistamenos D.O.I. Amfissas against Charilaos Georgakis on the following question:

Where stock-market transactions agreed on in advance which result in the increase or artificial inflation of the price of the securities transferred are carried out between persons or groups of persons having one of the characteristics set out in Article 2(1) of Council Directive 89/592/EEC, (1) are the persons carrying out those transactions to be regarded as persons possessing inside information within the meaning of Articles 1 and 2 of that directive, so that their actions fall within the prohibition, laid down by Articles 2, 3 and 4 of the directive, on taking advantage of inside information?

---

(1)  OJ L 334, 18.11.1989, p. 30.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/20 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/20

---

Reference for a preliminary ruling by the Bundesverwaltungsgericht by order of that court of 7 July 2004 in the case i-21-germany GmbH against the Federal Republic of Germany

(Case C-392/04)

(2004/C 273/35)

Reference has been made to the Court of Justice of the European Communities by order of the Bundesverwaltungsgericht of 7 July 2004, which was received at the Court Registry on 16 September 2004, for a preliminary ruling in the case of i-21-germany GmbH against the Federal Republic of Germany on the following questions:

| 1. | Is Article 11(1) of Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services (the licensing directive) to be interpreted as precluding the imposition of a licence fee calculated to anticipate the amount of a national regulatory authority's general administrative costs over a period of 30 years, to be charged in advance?
  If the answer to Question 1 is in the affirmative: |
| --- | --- |

1.

Is Article 11(1) of Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services (the licensing directive) to be interpreted as precluding the imposition of a licence fee calculated to anticipate the amount of a national regulatory authority's general administrative costs over a period of 30 years, to be charged in advance?

If the answer to Question 1 is in the affirmative:

| 2. | Are Article 10 EC and Article 11 of the licensing directive to be interpreted as meaning that a fee assessment that determines fees within the meaning of Question 1 and which has not been contested although such a possibility is afforded under national law must be set aside where that is permissible under national law but not mandatory? |
| --- | --- |

2.

Are Article 10 EC and Article 11 of the licensing directive to be interpreted as meaning that a fee assessment that determines fees within the meaning of Question 1 and which has not been contested although such a possibility is afforded under national law must be set aside where that is permissible under national law but not mandatory?

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/21 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/21

---

Reference for a preliminary ruling by the Cour d'appel de Liège (Ninth Chamber) by decision of that court of 15 September 2004 in the case of Air Liquide Industries Belgium SA against Ville de Seraing

(Case C-393/04)

(2004/C 273/36)

Reference has been made to the Court of Justice of the European Communities by order of the Cour d'appel de Liège (Ninth Chamber) of 15 September 2004 received at the Court Registry on 17 September 2004, for a preliminary ruling in the case of Air Liquide Industries Belgium SA against Ville de Serain on the following question:

‘Must exemption from a municipal tax on motive force granted solely in respect of motors used in natural gas installations, to the exclusion of motors used for other industrial gases, be regarded as State aid within the meaning of Article 87 of the Consolidated Version of the Treaty establishing the European Community?’

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/21 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/21

---

Reference for a preliminary ruling by the Simvoulio tis Epikratias by order of that court of 16 June 2004 in the case of Diagnostikon kai Therapeftikon Kentron Athinon – Igia A.E. against Ipourgos Ikonomikon

(Case C-394/04)

(2004/C 273/37)

Reference has been made to the Court of Justice of the European Communities by order of the Simvoulio tis Epikratias (Council of State, Greece) of 16 June 2004 received at the Court Registry on 17 September 2004, for a preliminary ruling in the case of Diagnostikon kai Therapeftikon Kentron Athinon – Igia A.E. against Ipourgos Ikonomikon on the following question:

Do services supplied by persons referred to in Article 13A(1)(b) of Directive 77/388/EEC (1) comprising the grant of use of a telephone and a television to patients and the provision of food and a bed to persons accompanying patients come under activities closely related to hospital and medical care, within the meaning of that provision, as activities ancillary to that care but also essential to it?

---

(1)  OJ L 145 of 13.6.1977.

---

| 6.11.2004 | EN | Official Journal of the European Union | C 273/21 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/21

---

Reference for a preliminary ruling by the Simvoulio tis Epikratias by order of that court of 16 June 2004 in the case of Diagnostikon kai Therapeftikon Kentron Athinon – Igia A.E. against Ipourgos Ikonomikon

(Case C-395/04)

(2004/C 273/38)

Reference has been made to the Court of Justice of the European Communities by order of the Simvoulio tis Epikratias (Council of State, Greece) of 16 June 2004 received at the Court Registry on 17 September 2004, for a preliminary ruling in the case of Diagnostikon kai Therapeftikon Kentron Athinon – Igia A.E. against Ipourgos Ikonomikon on the following question:

Do services supplied by persons referred to in Article 13A(1)(b) of Directive 77/388/EEC (1) comprising the grant of use of a telephone and a television to patients and the provision of food and a bed to persons accompanying patients come under activities closely related to hospital and medical care, within the meaning of that provision, as activities ancillary to that care but also essential to it?

---

(1)  OJ L 145 of 13.6.1977.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/21 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/21

---

Action brought on 20 September 2004 by the Commission of the European Communities against the Republic of Finland

(Case C-396/04)

(2004/C 273/39)

An action against the Republic of Finland was brought before the Court of Justice of the European Communities on 20 September 2004 by the Commission of the European Communities, represented by M. Huttunen and K. Simonsson, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | Declare that, by failing to bring into force the laws, regulations and administrative provisions necessary to comply with Directive 2001/96/EC of the European Parliament and of the Council of 4 December 2001 establishing harmonised requirements and procedures for the safe loading and unloading of bulk carriers (1), or at least by failing to notify them to the Commission, the Republic of Finland has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

Declare that, by failing to bring into force the laws, regulations and administrative provisions necessary to comply with Directive 2001/96/EC of the European Parliament and of the Council of 4 December 2001 establishing harmonised requirements and procedures for the safe loading and unloading of bulk carriers (1), or at least by failing to notify them to the Commission, the Republic of Finland has failed to fulfil its obligations under that directive;

| 2. | Order Finland to pay the costs. |
| --- | --- |

2.

Order Finland to pay the costs.

Pleas in law and main arguments:

The period prescribed for implementing the directive expired on 5 August 2003.

---

(1)  OJ L 13 of 16.1.2002, p. 9.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/22 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/22

---

Action brought on 21 September 2004 by the Commission of the European Communities against the French Republic

(Case C-399/04)

(2004/C 273/40)

An action against the French Republic was brought before the Court of Justice of the European Communities on 21 September 2004 by the Commission of the European Communities, represented by Antonio Caeiros, acting as Agent, with an address for service in Luxembourg.

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

| 1. | declare that, by failing to adopt and publish within the period prescribed the laws, regulations and administrative provisions necessary to comply with Commission Directive 2003/2/EC of 6 January 2003 relating to restrictions on the marketing and use of arsenic (tenth adaptation to technical progress to Council Directive 76/769/EEC) (1), the French Republic has failed to fulfil its obligations under the first paragraph of Article 2 of Directive 2003/2/EC; |
| --- | --- |

1.

declare that, by failing to adopt and publish within the period prescribed the laws, regulations and administrative provisions necessary to comply with Commission Directive 2003/2/EC of 6 January 2003 relating to restrictions on the marketing and use of arsenic (tenth adaptation to technical progress to Council Directive 76/769/EEC) (1), the French Republic has failed to fulfil its obligations under the first paragraph of Article 2 of Directive 2003/2/EC;

| 2. | declare, in the alternative, that by failing immediately to inform the Commission of those measures, the French Republic has failed to fulfil its obligations under the first paragraph of Article 2 of the abovementioned directive; |
| --- | --- |

2.

declare, in the alternative, that by failing immediately to inform the Commission of those measures, the French Republic has failed to fulfil its obligations under the first paragraph of Article 2 of the abovementioned directive;

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

3.

order the French Republic to pay the costs.

Pleas in law and main arguments:

The period prescribed for the transposition of the directive expired on 30 June 2003.

---

(1)  OJ L 4, 9.1.2003, p. 9.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/22 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/22

---

Action brought on 21 September 2004 by the Commission of the European Communities against the Kingdom of the Netherlands

(Case C-400/04)

(2004/C 273/41)

An action against the Kingdom of the Netherlands was brought before the Court of Justice of the European Communities on 21 September 2004 by the Commission of the European Communities, represented by Knut Simonsson and Wouter Wils.

The applicant claims that the Court should:

| 1. | Declare that, by not adopting the legislative and administrative measures necessary in order to implement Directive 2001/96/EC (1) of the European Parliament and the Council of 4 December 2001 establishing harmonised requirements and procedures for the safe loading and unloading of bulk carriers, or at any rate by not informing the Commission thereof, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive. |
| --- | --- |

1.

Declare that, by not adopting the legislative and administrative measures necessary in order to implement Directive 2001/96/EC (1) of the European Parliament and the Council of 4 December 2001 establishing harmonised requirements and procedures for the safe loading and unloading of bulk carriers, or at any rate by not informing the Commission thereof, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive.

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

2.

Order the Kingdom of the Netherlands to pay the costs.

Pleas and main arguments:

The period allowed for transposition of Directive 2001/96/EC expired on 5 August 2003.

---

(1)  OJ 2001 L 13, p. 9.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/23 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/23

---

Action brought on 22 September 2004 by the Commission of the European Communities against the Kingdom of Sweden

(Case C-401/04)

(2004/C 273/42)

An action against the Kingdom of Sweden was brought before the Court of Justice of the European Communities on 22 September 2004 by the Commission of the European Communities, represented by K. Simonsson and W. Wils, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

| 1. | Declare that Sweden has failed to fulfil its obligations under Directive 2001/16/EC (1) of the European Parliament and of the Council of 19 March 2001 on the interoperability of the trans-European conventional rail system by failing to adopt the laws and other provisions necessary to comply with the directive or, in any event, by failing to inform the Commission thereof, and |
| --- | --- |

1.

Declare that Sweden has failed to fulfil its obligations under Directive 2001/16/EC (1) of the European Parliament and of the Council of 19 March 2001 on the interoperability of the trans-European conventional rail system by failing to adopt the laws and other provisions necessary to comply with the directive or, in any event, by failing to inform the Commission thereof, and

| 2. | Order Sweden to pay the costs. |
| --- | --- |

2.

Order Sweden to pay the costs.

Pleas in law and main arguments:

The period prescribed for the implementation of the directive ended on 20 April 2003.

---

(1)  OJ L 110, 20.4.2001, p. 1.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/23 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/23

---

Action brought on 22 September 2004 by the Commission of the European Communities against the French Republic

(Case C-402/04)

(2004/C 273/43)

An action against the French Republic was brought before the Court of Justice of the European Communities on 22 September 2004 by the Commission of the European Communities, represented by Knut Simonssen, acting as Agent, with an address for service in Luxembourg.

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

| 1. | declare that by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/96/EC of the European Parliament and of the Council of 4 December 2001 establishing harmonised requirements and procedures for the safe loading and unloading of bulk carriers (1), and in any event, by failing to communicate them to the Commission, the French Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/96/EC of the European Parliament and of the Council of 4 December 2001 establishing harmonised requirements and procedures for the safe loading and unloading of bulk carriers (1), and in any event, by failing to communicate them to the Commission, the French Republic has failed to fulfil its obligations under that directive;

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

2.

order the French Republic to pay the costs.

Pleas in law and main arguments:

The period allowed for the transposition of the Directive expired on 5 August 2003.

---

(1)  OJ L 13, 16.01.2002, p. 9.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/23 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/23

---

Appeal brought on 22 September 2004 by Technische Glaswerke Ilmenau GmbH against the judgment delivered on 8 July 2004 by the Fifth Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-198/01 between Technische Glaswerke Ilmenau GmbH and the Commission of the European Communities, supported by Schott Glas

(Case C-404/04 P)

(2004/C 273/44)

An appeal against the judgment delivered on 8 July 2004 by the Fifth Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-198/01 between Technische Glaswerke Ilmenau GmbH and the Commission of the European Communities, supported by Schott Glas, was brought before the Court of Justice of the European Communities on 22 September 2004 by Technische Glaswerke Ilmenau GmbH, represented by Christoph Arhold and Norbert Wimmer, Rechtsanwälte, White & Case LLP, 62 rue de la Loi, B-1040 Brussels, with an address for service in Luxembourg.

The appellant claims that the Court should:

| 1. | Set aside the judgment of the Court of First Instance of 8 July 2004 in Case T-198/01; (1) |
| --- | --- |

1.

Set aside the judgment of the Court of First Instance of 8 July 2004 in Case T-198/01; (1)

| 2. | Annul the decision of the Commission of 12 June 2001; |
| --- | --- |

2.

Annul the decision of the Commission of 12 June 2001;

| 3. | In the alternative, refer the case back to the Court of First Instance; |
| --- | --- |

3.

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

| 4. | Order the respondent to pay the costs. |
| --- | --- |

4.

Order the respondent to pay the costs.

Pleas and main arguments:

| 1. | The appellant contests the judgment of the Court of First Instance of 8 July 2004 in Case T-198/01 dismissing the application for annulment of the Commission's decision classifying as aid the reduction by DEM 4 000 000 of the purchase price of an undertaking privatised by the Treuhandanstalt (subsequently BvS) and requiring it to be recovered. |
| --- | --- |

1.

The appellant contests the judgment of the Court of First Instance of 8 July 2004 in Case T-198/01 dismissing the application for annulment of the Commission's decision classifying as aid the reduction by DEM 4 000 000 of the purchase price of an undertaking privatised by the Treuhandanstalt (subsequently BvS) and requiring it to be recovered.

| 2. | The appellant, both in the procedure for the examination of aid and in the procedure before the Court of First Instance, put forward the view that it had been entitled to the reduction of the purchase price on the ground that the basis of the transaction had ceased to exist, since it and the vendor — the Treuhandanstalt — had both presumed when fixing the purchase price that the Freistaat Thüringen (Land of Thuringia) would support the appellant's investment in the privatised undertaking from GA funds (a general regional aid scheme approved by the Commission) at a higher rate (permissible for small and medium-sized undertakings). That support had been the basis of the calculation. Since only normal, not higher-rate support had been granted, the basis of calculation had ceased to exist to that extent, and the purchase price should have been adjusted accordingly. Since there had been a general civil-law claim to adjustment of the purchase price, which any private seller would also have been subject to, there could have been no question of aid (no economic advantage and no selectivity within the meaning of Article 87(1) EC). That was also the case because under the Treuhand system in force at the time of privatisation the fixing of a correspondingly lower purchase price would have been permissible without any problems as regards aid law. |
| --- | --- |

2.

The appellant, both in the procedure for the examination of aid and in the procedure before the Court of First Instance, put forward the view that it had been entitled to the reduction of the purchase price on the ground that the basis of the transaction had ceased to exist, since it and the vendor — the Treuhandanstalt — had both presumed when fixing the purchase price that the Freistaat Thüringen (Land of Thuringia) would support the appellant's investment in the privatised undertaking from GA funds (a general regional aid scheme approved by the Commission) at a higher rate (permissible for small and medium-sized undertakings). That support had been the basis of the calculation. Since only normal, not higher-rate support had been granted, the basis of calculation had ceased to exist to that extent, and the purchase price should have been adjusted accordingly. Since there had been a general civil-law claim to adjustment of the purchase price, which any private seller would also have been subject to, there could have been no question of aid (no economic advantage and no selectivity within the meaning of Article 87(1) EC). That was also the case because under the Treuhand system in force at the time of privatisation the fixing of a correspondingly lower purchase price would have been permissible without any problems as regards aid law.

| 3. | The Commission rejected the appellant's argument on legal grounds and took the view that claims against the Treuhand and the Freistaat Thüringen were to be investigated separately. The Court of First Instance approved that reasoning, and furthermore pointed out that the applicant had not produced in the judicial proceedings any written evidence that the Freistaat Thüringen had agreed to provide support. |
| --- | --- |

3.

The Commission rejected the appellant's argument on legal grounds and took the view that claims against the Treuhand and the Freistaat Thüringen were to be investigated separately. The Court of First Instance approved that reasoning, and furthermore pointed out that the applicant had not produced in the judicial proceedings any written evidence that the Freistaat Thüringen had agreed to provide support.

| 4. | The appeal is directed against this. In connection with the ceasing to exist of the basis of the transaction, the appellant puts forward in particular the following grounds of appeal:






  — | The Court of First Instance wrongly found that the Commission had not infringed the duty to state reasons (Article 253 EC), since it was not possible, on the basis of the Commission's reasoning, to ascertain why the Commission had rejected the applicant's stated claim against the Treuhand (now BvS) on the ground of the ceasing to exist of the basis of the transaction. |
| --- | --- | --- |

4.

The appeal is directed against this. In connection with the ceasing to exist of the basis of the transaction, the appellant puts forward in particular the following grounds of appeal:

—

The Court of First Instance wrongly found that the Commission had not infringed the duty to state reasons (Article 253 EC), since it was not possible, on the basis of the Commission's reasoning, to ascertain why the Commission had rejected the applicant's stated claim against the Treuhand (now BvS) on the ground of the ceasing to exist of the basis of the transaction.

| — | If the Commission's reasoning satisfied the requirements of Article 253 EC, the Court of First Instance should in any case have found a manifest error of assessment on the part of the Commission, since the Commission's reasoning was manifestly incapable of casting doubt on the appellant's submissions on the ceasing to exist of the basis of the transaction. A breach of Article 87(1) EC by the Commission should accordingly have been found by the Court of First Instance. |
| --- | --- |

—

If the Commission's reasoning satisfied the requirements of Article 253 EC, the Court of First Instance should in any case have found a manifest error of assessment on the part of the Commission, since the Commission's reasoning was manifestly incapable of casting doubt on the appellant's submissions on the ceasing to exist of the basis of the transaction. A breach of Article 87(1) EC by the Commission should accordingly have been found by the Court of First Instance.

| — | In so far as the Court of First Instance relied on additional reasons not adduced by the Commission (no evidence of a promise by the Freistaat Thüringen), these were inadmissible (substitution of reasoning) and irrelevant (it was not the promise by Thüringen that was evidentially relevant but the mistake of the contracting parties as to the amount of support). |
| --- | --- |

—

In so far as the Court of First Instance relied on additional reasons not adduced by the Commission (no evidence of a promise by the Freistaat Thüringen), these were inadmissible (substitution of reasoning) and irrelevant (it was not the promise by Thüringen that was evidentially relevant but the mistake of the contracting parties as to the amount of support).

| — | Moreover, the Court of First Instance infringed essential procedural rules, inter alia the right to be heard, by rejecting in its judgment the appellant's applications for evidence to be taken as regards the basis of calculation, and at the same time basing the judgment on the fact that the appellant had not proved its submissions. |
| --- | --- |

—

Moreover, the Court of First Instance infringed essential procedural rules, inter alia the right to be heard, by rejecting in its judgment the appellant's applications for evidence to be taken as regards the basis of calculation, and at the same time basing the judgment on the fact that the appellant had not proved its submissions.

| 5. | In addition to the above grounds of appeal, the appellant also complains of errors of law in relation to other defects in the reasoning of the Commission's decision and error of law in finding that the Commission had not committed significant procedural errors. |
| --- | --- |

5.

In addition to the above grounds of appeal, the appellant also complains of errors of law in relation to other defects in the reasoning of the Commission's decision and error of law in finding that the Commission had not committed significant procedural errors.

---

(1)  Not yet published in the Official Journal of the European Union.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/24 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/24

---

Appeal brought on 23 September 2004 by Mannesmannröhren-Werke AG against the judgment delivered on 8 July 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-44/00 between Mannesmannröhren-Werke AG and the Commission of the European Communities

(Case C-411/04 P)

(2004/C 273/45)

An appeal against the judgment delivered on 8 July 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-44/00 between Mannesmannröhren-Werke AG and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 23 September 2004 by Mannesmannröhren-Werke AG, represented by Dr. Martin Klusmann und Dr. Frederik Wiemer, Anwälte, of Freshfields Bruckhaus Deringer, Freiligrathstraße 1, D-40479 Düsseldorf.

The appellant claims that the Court should

| 1. | Set aside the judgment of the Court of First Instance of the European Communities of 8 July 2004 in Case T-44/00 Mannesmannröhren-Werke AG v Commission of the European Communities, (1) and grant the form of order sought by the applicant in that case, in so far as in that judgment the Court of First Instance dismissed the action for annulment of Commission Decision 2003/382/EC of 8 December 1999 relating to a proceeding under Article 81 EC. |
| --- | --- |

1.

Set aside the judgment of the Court of First Instance of the European Communities of 8 July 2004 in Case T-44/00 Mannesmannröhren-Werke AG v Commission of the European Communities, (1) and grant the form of order sought by the applicant in that case, in so far as in that judgment the Court of First Instance dismissed the action for annulment of Commission Decision 2003/382/EC of 8 December 1999 relating to a proceeding under Article 81 EC.

| 2. | Annul Commission Decision 2003/382/EC of 8 December 1999 in its entirety. |
| --- | --- |

2.

Annul Commission Decision 2003/382/EC of 8 December 1999 in its entirety.

| 3. | In the alternative, reduce as appropriate the level of the fine imposed on the applicant in Article 4 of Decision 2003/382/EC as well as the interest payable during the related legal proceedings and the default interest specified in Article 5 of Decision 2003/382/EC. |
| --- | --- |

3.

In the alternative, reduce as appropriate the level of the fine imposed on the applicant in Article 4 of Decision 2003/382/EC as well as the interest payable during the related legal proceedings and the default interest specified in Article 5 of Decision 2003/382/EC.

| 4. | In the further alternative, refer the dispute back to the Court of First Instance of the European Communities for a fresh judgment in accordance with the legal interpretation of the Court of Justice. |
| --- | --- |

4.

In the further alternative, refer the dispute back to the Court of First Instance of the European Communities for a fresh judgment in accordance with the legal interpretation of the Court of Justice.

| 5. | Order the defendant to pay the entire costs of the proceedings. |
| --- | --- |

5.

Order the defendant to pay the entire costs of the proceedings.

Pleas in law and main arguments:

The appellant raises three pleas in law in support of its appeal for more extensive annulment of the decision:

| 1. | The Court of First Instance offended against the legal principle of fairness in judicial proceedings because it made an error of law in finding that the crucial ‘sharing-key document’ was admissible as inculpatory evidence despite the fact that its authorship, origin and the circumstances in which it was obtained are not known to the applicant at first instance. The applicant would only have been able to defend itself appropriately against the incriminating sharing-key document if it had been in a position not only to make submissions in relation to the content of that document but also in relation to its credibility. |
| --- | --- |

1.

The Court of First Instance offended against the legal principle of fairness in judicial proceedings because it made an error of law in finding that the crucial ‘sharing-key document’ was admissible as inculpatory evidence despite the fact that its authorship, origin and the circumstances in which it was obtained are not known to the applicant at first instance. The applicant would only have been able to defend itself appropriately against the incriminating sharing-key document if it had been in a position not only to make submissions in relation to the content of that document but also in relation to its credibility.

| 2. | The Court of First Instance incorrectly confirmed the infringement of competition law alleged in Article 2 of the contested decision. The defendant did not establish that by concluding the supply contract with Corus in 1993 the applicant reached or implemented a horizontal agreement with Vallourec und Dalmine. No account was taken of the fact that the contract was a non-exclusive supply contract concluded more than two years after other contracts. |
| --- | --- |

2.

The Court of First Instance incorrectly confirmed the infringement of competition law alleged in Article 2 of the contested decision. The defendant did not establish that by concluding the supply contract with Corus in 1993 the applicant reached or implemented a horizontal agreement with Vallourec und Dalmine. No account was taken of the fact that the contract was a non-exclusive supply contract concluded more than two years after other contracts.

| 3. | The Court of First Instance infringed the principle of equal treatment in so far as it did not grant the applicant, in contrast to Vallourec and Dalmine, a reduction in its fine for cooperating in the investigation in accordance with the Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4). By way of the ‘Becher’ declarations, the applicant made its own contribution to clarifying the facts of the case, which was also acknowledged in the contested decision. Moreover, the applicant did not contest the facts found in the statement of objections. However, the court also failed to take this into account in considering whether the fine should be reduced. |
| --- | --- |

3.

The Court of First Instance infringed the principle of equal treatment in so far as it did not grant the applicant, in contrast to Vallourec and Dalmine, a reduction in its fine for cooperating in the investigation in accordance with the Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4). By way of the ‘Becher’ declarations, the applicant made its own contribution to clarifying the facts of the case, which was also acknowledged in the contested decision. Moreover, the applicant did not contest the facts found in the statement of objections. However, the court also failed to take this into account in considering whether the fine should be reduced.

---

(1)  OJ C 239 of 25.12.2004.

---

| 6.11.2004 | EN | Official Journal of the European Union | C 273/25 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/25

---

Action brought on 27 September 2004 by the European Parliament against the Council of the European Union

(Case C-413/04)

(2004/C 273/46)

An action against the Council of the European Union was brought before the Court of Justice of the European Communities on 27 September 2004 by the European Parliament, represented by A. Baas and U. Rösslein, acting as Agents, with an address for service in Luxembourg.

The European Parliament claims that the Court should:

| — | annul Council Directive 2004/85/EC of 28 June 2004 amending Directive 2003/54/EC of the European Parliament and of the Council as regards the application of certain provisions to Estonia; (1) |
| --- | --- |

—

annul Council Directive 2004/85/EC of 28 June 2004 amending Directive 2003/54/EC of the European Parliament and of the Council as regards the application of certain provisions to Estonia; (1)

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

—

order the Council to pay all the costs.

Pleas in law and main arguments:

Article 57 of the Act of Accession 2003 is not the appropriate legal basis for the adoption of the disputed directive. The purpose of that provision is to adapt Community legislation by reason of accession and to apply to the new Member States Community acts which have not been adapted by the Act of Accession itself. Accordingly, further amendments cannot be based on Article 57 of the act. That provision cannot be used to introduce derogations to Community acts, particularly those which go beyond those expressly granted by and delimited in the Act of Accession.

There has been a failure to give sufficient reasons for the disputed directive, as the justification for using Article 57 of the Act of Accession 2003 as a legal basis is not in any way apparent from the recitals in the preamble to and the other provisions of the directive.

---

(1)  OJ L 236 of 7.7.2004, p. 10.

---

| 6.11.2004 | EN | Official Journal of the European Union | C 273/26 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/26

---

Action brought on 27 September 2004 by the European Parliament against the Council of the European Union

(Case C-414/04)

(2004/C 273/47)

An action against the against the Council of the European Union was brought before the Court of Justice of the European Communities on 27 September 2004 by the European Parliament, represented by A. Baas and U. Rösslein, lawyers, with an address for service in Luxembourg.

The European Parliament claims that the Court should:

| — | annul Council Regulation (EC) No 1223/2004 of 28 June 2004 amending Regulation (EC) No 1228/2003 of the European Parliament and of the Council as regards the date of application of certain provisions to Slovenia (1); |
| --- | --- |

—

annul Council Regulation (EC) No 1223/2004 of 28 June 2004 amending Regulation (EC) No 1228/2003 of the European Parliament and of the Council as regards the date of application of certain provisions to Slovenia (1);

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

—

order the Council to pay the costs.

Pleas in law and main arguments:

Article 57 of the 2003 Act of Accession is not the appropriate legal basis for the adoption of the contested regulation. The purpose of that provision is to adapt the Community legislation to the accession and to make Community acts which have not been adapted by the act of accession itself applicable to the new Member States. Accordingly, other amendments cannot be based on Article 57 of the Act. That provision cannot be used to introduce derogations from Community acts.

The disputed regulation does not contain a sufficient statement of reasons, since the use of Article 57 of the 2003 Act of Accession as a legal basis is not sufficiently clear from the recitals and other provisions of that regulation.

---

(1)  OJ L 233 of 2.7.2004, p. 3.

---

| 6.11.2004 | EN | Official Journal of the European Union | C 273/26 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/26

---

Removal from the register of Case C-13/02 (1)

(2004/C 273/48)

By order of 22 July 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-13/02 (reference for a preliminary ruling from the Tribunale Amministrative Regionale per la Lombardia, Sezione staccata di Brescia): Casearia Bresciana Ca.Bre.Soc.Coop.a.r.l. and Other v A.I.M.A. (Azienda di Stato per gli interventi nel mercato agricolo).

---

(1)  OJ C 68 of 16.3.2002.

---

| 6.11.2004 | EN | Official Journal of the European Union | C 273/26 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/26

---

Removal from the register of Case C-81/02 (1)

(2004/C 273/49)

By order of 28 July 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-81/02 (reference for a preliminary ruling from thel' Oberster Gerichtshof): Wolfgang Rohringer en qualité de syndic faillite dans la procédure de liquidation des biens de la société Eurokeramik GmbH & Co. KG v Gemeinnützige Salzburger Wohnbaugesellschaft mbH.

---

(1)  OJ C 144 of 15.6.2002.

---

| 6.11.2004 | EN | Official Journal of the European Union | C 273/26 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/26

---

Removal from the register of Case C-197/02 (1)

(2004/C 273/50)

By order of 29 July 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-197/02: Commission of the European Communities v Kingdom of Spain.

---

(1)  OJ C 191 of 10.8.2002.

---

| 6.11.2004 | EN | Official Journal of the European Union | C 273/27 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/27

---

Removal from the register of Case C-361/03 P (1)

(2004/C 273/51)

By order of 29 July 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-361/03 P: El Corte Inglés SA v OHIM, Calzaturificio Yvonne Srl.

---

(1)  OJ C 239 of 4.10.2003.

---

| 6.11.2004 | EN | Official Journal of the European Union | C 273/27 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/27

---

Removal from the register of Case C-457/03 (1)

(2004/C 273/52)

By order of 22 July 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-457/03 (reference for a preliminary ruling from the Tribunale di Bergamo): Azienda Agricola Albergati Giovanni Angelo v A.G.E.A. (Agenzia Erogazioni in Agricoltura).

---

(1)  OJ C 7 of 10.1.2004.

---

| 6.11.2004 | EN | Official Journal of the European Union | C 273/27 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/27

---

Removal from the register of Case C-554/03 (1)

(2004/C 273/53)

By order of 22 July 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-554/03 (reference for a preliminary ruling from the l'Ufficio del Giudice di Pace di Gorizia): Azienda Agricola Tomadin Silvano v A.G.E.A. (Agenzia Erogazioni in Agricoltura).

---

(1)  OJ C 47 of 21.2.2004.

---

| 6.11.2004 | EN | Official Journal of the European Union | C 273/27 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/27

---

Removal from the register of Case C-17/04 (1)

(2004/C 273/54)

By order of 29 July 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-17/04: Commission of the European Communities v Kingdom of Spain.

---

(1)  OJ C 59 of 6.3.2004.

---

COURT OF FIRST INSTANCE

| 6.11.2004 | EN | Official Journal of the European Union | C 273/28 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/28

---

Action brought on 14 May 2004 by L&D S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-168/04)

(2004/C 273/55)

Language of the case to be determined pursuant to Article 131(2) of the Rules of Procedure, language in which the application was submitted: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 14 May 2004 by L&D S.A., Huercal de Almeria (Spain), represented by M. Knospe, lawyer.

Julius Sämann Ltd., Zug (Switzerland), was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | annul Paragraphs 1 and 3 of the operative part of the decision of the defendant Office of 15 March 2004 in Case R 326/2003-2 concerning application No 252 288 for registration of a Community trade mark; |
| --- | --- |

—

annul Paragraphs 1 and 3 of the operative part of the decision of the defendant Office of 15 March 2004 in Case R 326/2003-2 concerning application No 252 288 for registration of a Community trade mark;

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

—

order the defendant Office to pay the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | The applicant. |
| --- | --- |
| Community trade mark sought: | The figurative mark ‘Aire Limpio’ for goods and services in Classes 3, 5 and 35 (inter alia, perfumery and essential oils, scented air fresheners and advertising) — Application No 252 288. |
| Proprietor of mark or sign cited in the opposition proceedings: | Julius Sämann Ltd. |
| Mark or sign cited in opposition: | National and international figurative marks and figurative Community trade mark No 91 991 consisting of fir-tree shapes bearing various words and registered for goods in Class 5 (air fresheners). |
| Decision of the Opposition Division: | Rejection of the opposition. |
| Decision of the Board of Appeal: | Partial annulment of the decision of the Opposition Division. Refusal to register in respect of goods in Classes 3 and 5 |
| Pleas in law: | Infringement of Article 8(1) of Regulation (EC) No 40/94;
  No similarity between the signs;
  Infringement of Article 73 of Regulation (EC) No 40/94. |

Applicant for Community trade mark:

The applicant.

Community trade mark sought:

The figurative mark ‘Aire Limpio’ for goods and services in Classes 3, 5 and 35 (inter alia, perfumery and essential oils, scented air fresheners and advertising) — Application No 252 288.

Proprietor of mark or sign cited in the opposition proceedings:

Julius Sämann Ltd.

Mark or sign cited in opposition:

National and international figurative marks and figurative Community trade mark No 91 991 consisting of fir-tree shapes bearing various words and registered for goods in Class 5 (air fresheners).

Decision of the Opposition Division:

Rejection of the opposition.

Decision of the Board of Appeal:

Partial annulment of the decision of the Opposition Division. Refusal to register in respect of goods in Classes 3 and 5

Pleas in law:

Infringement of Article 8(1) of Regulation (EC) No 40/94;

No similarity between the signs;

Infringement of Article 73 of Regulation (EC) No 40/94.

---

| 6.11.2004 | EN | Official Journal of the European Union | C 273/28 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/28

---

Action brought on 21 June 2004 by Alain Crespinet against the Commission of the European Communities

(Case T-261/04)

(2004/C 273/56)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 21 June 2004 by Alain Crespinet, resident in Rosières (Belgium), represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers.

The applicant claims that the Court should:

| — | annul the decision awarding his priority points for the 2003 promotions exercise and the decision not to include the applicant in the list of officials promoted to grade A5 in the same exercise; |
| --- | --- |

—

annul the decision awarding his priority points for the 2003 promotions exercise and the decision not to include the applicant in the list of officials promoted to grade A5 in the same exercise;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments:

In the present case, the applicant objects to the refusal by the appointing authority of the institution to promote him to grade A5 in the 2003 promotions exercise, following the awarding, for that exercise, of an insufficient number of priority points to attain the points threshold necessary to be taken into consideration for a promotion.

The applicant alleges the following in support of his action:

| — | infringement of Articles 5, 7 and 26 of the Staff Regulations; |
| --- | --- |

—

infringement of Articles 5, 7 and 26 of the Staff Regulations;

| — | infringement of Articles 43 and 45 of the Staff Regulations and the appurtenant general provisions for implementing them; |
| --- | --- |

—

infringement of Articles 43 and 45 of the Staff Regulations and the appurtenant general provisions for implementing them;

| — | infringement of the principle of correlation between grade and position; |
| --- | --- |

—

infringement of the principle of correlation between grade and position;

| — | infringement of the principle of career development; |
| --- | --- |

—

infringement of the principle of career development;

| — | infringement of the principle of equal treatment and non-discrimination. |
| --- | --- |

—

infringement of the principle of equal treatment and non-discrimination.

The applicant alleges in particular that the awarding of one point per year in the grade, as provided for in Article 12(3) of the general provisions for implementing Article 45 of the Staff Regulations, rewards grade seniority of officials eligible for promotion without taking account of their actual merit as demonstrated by them during those years and in relation to which the staff reports were drawn up.

---

| 6.11.2004 | EN | Official Journal of the European Union | C 273/29 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/29

---

Action brought on 6 July 2004 by Jean-Paul Keppenne against the Commission of the European Communities

(Case T-272/04)

(2004/C 273/57)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 6 July 2004 by Jean-Paul Keppenne, resident in Etterbeek (Belgium), represented by Paul-Emmanuel Ghislain, lawyer.

The applicant claims that the Court should:

| — | annul the Commission's decision not to increase the number of DG propriety points awarded to the applicant in the evaluation for the 2003 appraisal year and not to promote the applicant to grade A5 in the 2003 promotions exercise; |
| --- | --- |

—

annul the Commission's decision not to increase the number of DG propriety points awarded to the applicant in the evaluation for the 2003 appraisal year and not to promote the applicant to grade A5 in the 2003 promotions exercise;

| — | order the Commission to pay the applicant the amount of EUR 3 000 by way of compensation for the non-material damage suffered by him; |
| --- | --- |

—

order the Commission to pay the applicant the amount of EUR 3 000 by way of compensation for the non-material damage suffered by him;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments:

The applicant, an official with the Commission, intends to establish that the decision not to promote him is illegal, first, because it is, in his view, punishment for his having been seconded to the Court of Justice from 1996 to 2003 and, second, because it did not take appropriate account of his merits.

The applicant alleges the following in support of his action:

| — | infringement of the principle of non-discrimination, infringement of Article 2(1) of the general provisions for implementing Article 45 of the Staff Regulations and misuse of powers; |
| --- | --- |

—

infringement of the principle of non-discrimination, infringement of Article 2(1) of the general provisions for implementing Article 45 of the Staff Regulations and misuse of powers;

| — | infringement of Article 6(3)(ii) and (4)(a) of the general provisions for implementing Article 45 of the Staff Regulations and infringement of the principle of proportionality; |
| --- | --- |

—

infringement of Article 6(3)(ii) and (4)(a) of the general provisions for implementing Article 45 of the Staff Regulations and infringement of the principle of proportionality;

| — | infringement of Article 12(3)(a) of the general provisions for implementing Article 45 of the Staff Regulations; |
| --- | --- |

—

infringement of Article 12(3)(a) of the general provisions for implementing Article 45 of the Staff Regulations;

| — | infringement of Article 2(1)(2) of the general provisions for implementing Article 43 of the Staff Regulations; |
| --- | --- |

—

infringement of Article 2(1)(2) of the general provisions for implementing Article 43 of the Staff Regulations;

| — | infringement of Article 45 of the Staff Regulations. |
| --- | --- |

—

infringement of Article 45 of the Staff Regulations.

In the alternative, the applicant alleges infringement of the obligation to state reasons and of Article 13 of the general provisions for implementing Article 45 of the Staff Regulations.

---

| 6.11.2004 | EN | Official Journal of the European Union | C 273/29 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/29

---

Action brought on 16 July 2004 by Enviro Tech Europe, Ltd., and Enviro Tech International, Inc., against the Commission of the European Communities

(Case T-291/04)

(2004/C 273/58)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 16 July 2004 by Enviro Tech Europe, Ltd., Kingston upon Thames, United Kingdom and Enviro Tech International, Inc., Illinois, USA, represented by Mr C. Mereu and Mr K. Van Maldegem, lawyers.

The applicant claims that the Court should:

| I. | partially annul Commission Directive 2004/73/EC of 29 April 2004 (OJ L 152, p. 1) with respect to the listing of nPB as a highly flammable (R11) and a Category 2 substance for reproductive toxicity (R60); |
| --- | --- |

I.

partially annul Commission Directive 2004/73/EC of 29 April 2004 (OJ L 152, p. 1) with respect to the listing of nPB as a highly flammable (R11) and a Category 2 substance for reproductive toxicity (R60);

| II. | declare the Commission liable for damages suffered by the applicants to date and pending these proceedings as a result of the Commission's unlawful conduct, including but not limited to its denial of the applicants' request and related adoption of the contested decision, and to compensate the applicants for such damages in the provisional amount of EUR 350 000; |
| --- | --- |

II.

declare the Commission liable for damages suffered by the applicants to date and pending these proceedings as a result of the Commission's unlawful conduct, including but not limited to its denial of the applicants' request and related adoption of the contested decision, and to compensate the applicants for such damages in the provisional amount of EUR 350 000;

| III. | declare the Commission liable for imminent losses and damages foreseeable with sufficient certainty, even if such losses and damages cannot be precisely assessed; |
| --- | --- |

III.

declare the Commission liable for imminent losses and damages foreseeable with sufficient certainty, even if such losses and damages cannot be precisely assessed;

| IV. | order the Commission to pay all costs and expenses in these proceedings. |
| --- | --- |

IV.

order the Commission to pay all costs and expenses in these proceedings.

Pleas in law and main arguments:

The applicants seek the partial annulment of Commission Directive 2004/73/EC of 29 April 2004 adapting to technical progress for the twenty-ninth time Council Directive 67/548/EEC on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (1) insofar as it concerns the classification of n-propyl bromide.

The pleas in law and main arguments invoked in this case are similar to those invoked in case T-422/03, Enviro Tech Europe and Enviro Tech International against Commission (OJ 2004 C 47, p. 35).

---

(1)  OJ L 152, p. 1

---

| 6.11.2004 | EN | Official Journal of the European Union | C 273/30 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/30

---

Action brought on 4 August 2004 by Vladimir Boucek against the Commission of the European Communities

(Case T-318/04)

(2004/C 273/59)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 4 August 2004 by Vladimir Boucek, residing in Prague (Czech Republic), represented by Libuse Krafftova, lawyer.

The applicant claims that the Court should:

| — | annul the decision of 29 March 2004 refusing the applicant admittance to the written test of the competition notification of which was given in Official Journal C 120 A/13; |
| --- | --- |

—

annul the decision of 29 March 2004 refusing the applicant admittance to the written test of the competition notification of which was given in Official Journal C 120 A/13;

| — | restore the applicant to the position he was in before the adoption of the decision of 29 March 2004 to refuse him admittance; |
| --- | --- |

—

restore the applicant to the position he was in before the adoption of the decision of 29 March 2004 to refuse him admittance;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments:

The applicant submitted an application for competition EPSO/A/2/03 for the constitution of a reserve list of assistant administrators (A 8) of Czech nationality. According to the competition notice, the application was to be submitted by Internet. By the contested decision the applicant's candidature was refused on the ground that he had not submitted his written application within the time-limit prescribed.

The applicant challenges that decision. He submits that, at the time of publication of the results of the preselection tests and the connected invitation to submit personal documents to the defendant within three weeks, the defendant, exceptionally, sent no notice to the candidates by email, as it had done in all other phases of the competition. Thus that must be considered discontinuous, inconsistent and a serious procedural defect.

The applicant further asserts that, arbitrarily and in disregard of the purpose of the process, some qualified candidates who in the circumstances were unable to comply with the short time-limit imposed were rejected. The fixing of a time-limit of less than three weeks was wholly disproportionate in view of the overall duration of the procedure of nine months. The defendant did not sufficiently appreciate the importance of this phase of the competition and failed to take appropriate measures to make all hitherto successful candidates aware of the time-limit. By so doing, it failed to use its discretion in an appropriate manner.

---

| 6.11.2004 | EN | Official Journal of the European Union | C 273/30 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/30

---

Action brought on 30 July 2004 by Triantafyllia Dionyssopoulou against the Council of the European Union

(Case T-320/04)

(2004/C 273/60)

Language of the case: French

An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 30 July 2004 by Triantafyllia Dionyssopoulou, residing at Norwich, Norfolk (United Kingdom), represented by Claude Quackels, lawyer.

The applicant claims that the Court of First Instance should:

| — | annul the decision notified on 12 December 2003 which used the correction coefficient for Greece for the computation of the pension; |
| --- | --- |

—

annul the decision notified on 12 December 2003 which used the correction coefficient for Greece for the computation of the pension;

| — | award the applicant as from 1 November 2003 the correction coefficient for the United Kingdom in respect of her pension; |
| --- | --- |

—

award the applicant as from 1 November 2003 the correction coefficient for the United Kingdom in respect of her pension;

| — | order the Council to pay the applicant by way of compensation for material and non-material damage a sum fixed ex æquo and de bono at EUR 20 000 in respect of loss estimated, without prejudice to any increase during the proceedings, at EUR 50 000; |
| --- | --- |

—

order the Council to pay the applicant by way of compensation for material and non-material damage a sum fixed ex æquo and de bono at EUR 20 000 in respect of loss estimated, without prejudice to any increase during the proceedings, at EUR 50 000;

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

—

order the Council to pay the costs.

Pleas in law and main arguments:

The applicant in this case, a former Community official in receipt of invalidity pension, challenges the administrative authority's decision to apply to that pension the correction coefficient for Greece rather than that applicable to the United Kingdom.

On this point she states that because of her taking up residence in the latter Member State, she is entitled to the application of that coefficient and that the refusal at issue in this dispute is unlawful, in so far as it fails to have regard to the principles of equal treatment, of the protection of legitimate expectations and of proper administration.

Furthermore, she alleges that the contested decision is based on a manifest error of assessment.

---

| 6.11.2004 | EN | Official Journal of the European Union | C 273/31 |
| --- | --- | --- | --- |

6.11.2004

EN

Official Journal of the European Union

C 273/31

---

Action brought on 5 August 2004 by Citicorp against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-325/04)

(2004/C 273/61)

Language in which the application was lodged: English

An action against the Office for Harmonisation in the Internal Market was brought before the Court of First Instance of the European Communities on 5 August 2004 by Citicorp, New York (United States), represented by Dr V. von Bomhard, Dr A. Renck, Dr C. Schulte and Dr A. Pohlmann, lawyers.

Link Interchange Network Ltd. was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | annul the Decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 May 2004 in case R0789/2002-1; |
| --- | --- |

—

annul the Decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 May 2004 in case R0789/2002-1;

| — | 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 Community trade mark: | Citicorp |
| --- | --- |
| Community trade mark concerned: | The word mark ‘Worldlink’ (application No 111880) |
| Goods and services: | Class 9, 16 and 36 |
| Proprietor of mark or sign cited in the opposition proceedings: | Link Interchange Network Ltd. |
| Mark or sign cited in opposition: | The national word and device mark ‘LINK’ for services in class 36 (banking services for the dispensing of cash, funds transfer and payment services, financial information services) |
| Decision of the Opposition Division: | Rejection of the Community trade mark application for the services financial affairs and monetary affairs in class 36 |
| Decision of the Board of Appeal: | Dismissal of the appeal |
| Pleas in law: | Infringement of Articles 73 and 74 of Regulation No 40/94 (1) and of Article 8(1)(b) of the same regulation. |

Applicant for Community trade mark:

Citicorp

Community trade mark concerned:

The word mark ‘Worldlink’ (application No 111880)

Goods and services:

Class 9, 16 and 36

Proprietor of mark or sign cited in the opposition proceedings:

Link Interchange Network Ltd.

Mark or sign cited in opposition:

The national word and device mark ‘LINK’ for services in class 36 (banking services for the dispensing of cash, funds transfer and payment services, financial information services)

Decision of the Opposition Division:

Rejection of the Community trade mark application for the services financial affairs and monetary affairs in class 36

Decision of the Board of Appeal:

Dismissal of the appeal

Pleas in law:

Infringement of Articles 73 and 74 of Regulation No 40/94 (1) and of Article 8(1)(b) of the same regulation.

---

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

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/32 |
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Action brought on 6 August 2004 by the Commission of the European Communities against Silicon and Software Systems Limited

(Case T-326/04)

(2004/C 273/62)

Language of the case: English

An action against Silicon and Software Systems, Dublin (Ireland) was brought before the Court of First Instance of the European Communities on 6 August 2004 by the Commission of the European Communities, represented by A. Whelan, agent and Dr D.R. Phelan, Barrister with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | condemn the defendant to pay the Commission the sum of EUR 38 446.50, corresponding to EUR 29 194 as the principal sum due and EUR 9 252.50 as late-payment interest from 30 August 2000 until 16 August 2004 at a rate of 8 % per annum; |
| --- | --- |

—

condemn the defendant to pay the Commission the sum of EUR 38 446.50, corresponding to EUR 29 194 as the principal sum due and EUR 9 252.50 as late-payment interest from 30 August 2000 until 16 August 2004 at a rate of 8 % per annum;

| — | condemn the defendant to pay the Commission 6.40 Euros per day by way of interest at a rate of 8 % per annum from 17 August 2004 until the date on which the debt is repaid in full; |
| --- | --- |

—

condemn the defendant to pay the Commission 6.40 Euros per day by way of interest at a rate of 8 % per annum from 17 August 2004 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:

On 28 March 1994, the Commission concluded with the defendant ESSI contract No 10043 with a view to work being carried out in respect of research and technological development in pursuance of the ESPRIT Programme. In accordance with the contract, the Commission made an advance payment in respect of its financial contribution to the defendant's account. Upon completion of the work, the defendant submitted its consolidated cost statement. The Commission refused to take into account those costs incurred before the commencement of the contract and modified the costs statement to that extent. The Commission states that the defendant never objected to this revised consolidated cost statement established by the Commission.

The Commission then requested the reimbursement of part of the advance that was in excess of the revised consolidated cost statement, namely EUR 29 194. The defendant refused to pay the outstanding balance and therefore breached, according to the Commission, the terms of the contract.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/32 |
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Action brought on 3 August 2004 by Syndicat National de l'Industrie des Viandes (SNIV) against the Commission of the European Communities

(Case T-327/04)

(2004/C 273/63)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 3 August 2004 by Syndicat National de l'Industrie des Viandes (SNIV), established in Paris, represented by Nicole Coutrelis and Sévérine Henneresse, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul the Commission decision of 30 March 2004 concerning the State aid ‘N515/2003 — France — Aid in the rendering sector — Slaughter tax’; |
| --- | --- |

—

annul the Commission decision of 30 March 2004 concerning the State aid ‘N515/2003 — France — Aid in the rendering sector — Slaughter tax’;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments:

Regarded as a public service mission, rendering is financed in France by a fund financed by an endowment from the State and a slaughter tax levied on slaughterhouses. That scheme was notified to the Commission. The applicant, which represents slaughterhouses, drew the Commission's attention to the need to initiate the formal investigation procedure in respect of the aid, laid down in Article 88(2) EC. However, by the contested decision the Commission found that the scheme at issue was not incompatible with Community law in respect of ‘animals which have died on the farm’ and did not constitute aid in respect of ‘slaughterhouse waste’.

Since it considers that the Commission thereby approved the system established by the French Government, the applicant claims that the Court should annul the contested decision on the ground of breach of Article 88(2) EC and Article 4(4) of Regulation No 659/1999. (1) The applicant submits that, on account of the serious problems in the assessment of the compatibility of the aid at issue, which it had mentioned, the Commission was not entitled to declare the aid at issue compatible without initiating the formal investigation procedure.

The applicant also relies on a number of errors of fact and of assessment in the contested decision. It also claims that the slaughter tax is manifestly contrary to a number of provisions of Community law, namely:

| — | the VAT rules; |
| --- | --- |

—

the VAT rules;

| — | the prohibition on quantitative restrictions between Member States (Article 28 EC), to the extent that the slaughter tax also relates to animals of 'mixed' origin, in accordance with Regulation No 1760/2000, (2) that is slaughtered in France, but from another Member State; |
| --- | --- |

—

the prohibition on quantitative restrictions between Member States (Article 28 EC), to the extent that the slaughter tax also relates to animals of 'mixed' origin, in accordance with Regulation No 1760/2000, (2) that is slaughtered in France, but from another Member State;

| — | Regulation No 1774/2002; (3) |
| --- | --- |

—

Regulation No 1774/2002; (3)

| — | freedom to provide services (Article 50 EC), to the extent that a single undertaking by département may provide rendering services to the slaughterhouses and farmers in the département; |
| --- | --- |

—

freedom to provide services (Article 50 EC), to the extent that a single undertaking by département may provide rendering services to the slaughterhouses and farmers in the département;

| — | the scheme of the Common Agricultural Policy. The applicant claims on that subject that by imposing the tax in question, France is undermining the common organisation of the market in meat and infringing the regulations relating to it, by artificially raising the price of meat. |
| --- | --- |

—

the scheme of the Common Agricultural Policy. The applicant claims on that subject that by imposing the tax in question, France is undermining the common organisation of the market in meat and infringing the regulations relating to it, by artificially raising the price of meat.

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(1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, OJ 1999 L 83, p. 1.

(2)  Regulation (EC) No 1760/2000 of the European Parliament and of the Council of 17 July 2000 establishing a system for the identification and registration of bovine animals and regarding the labelling of beef and beef products and repealing Council Regulation (EC) No 820/97, OJ 2000 L 204, p. 1.

(3)  Regulation (EC) No 1774/2002 of the European Parliament and of the Council of 3 October 2002 laying down health rules concerning animal by-products not intended for human consumption, OJ 2002 L 273, p. 1.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/33 |
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Action brought on 3 August 2004 by Günter Wilms against the Commission of the European Communities

(Case T-328/04)

(2004/C 273/64)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 3 August 2004 by Günter Wilms, residing in Brussels, represented by Marc van der Woude and Valérie Landes, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court of First Instance should:

| — | annul the list of promotions of 27 November 2003, in that it does not include the applicant's name or, as a subsidiary plea, the list of merit of 13 November 2003, in that it does not include the applicant's name, because of the attribution to him of an insufficient number of additional priority points; |
| --- | --- |

—

annul the list of promotions of 27 November 2003, in that it does not include the applicant's name or, as a subsidiary plea, the list of merit of 13 November 2003, in that it does not include the applicant's name, because of the attribution to him of an insufficient number of additional priority points;

| — | annul the decision of the Director General of the Legal Service, adopted on the basis of Article 6(3) of the General Provisions giving effect to Article 45 of the Staff Regulations, to award him only one Directorate-General priority point and only four priority points in total for the 2003 promotion period; |
| --- | --- |

—

annul the decision of the Director General of the Legal Service, adopted on the basis of Article 6(3) of the General Provisions giving effect to Article 45 of the Staff Regulations, to award him only one Directorate-General priority point and only four priority points in total for the 2003 promotion period;

| — | annul the appointing authority's decision, adopted on the basis of Article 9 of the General Provisions giving effect to Article 45 of the Staff Regulations, not to award him any ‘Promotion Committee for additional activity in the interests of the institution’ special priority points for the 2003 promotion year; |
| --- | --- |

—

annul the appointing authority's decision, adopted on the basis of Article 9 of the General Provisions giving effect to Article 45 of the Staff Regulations, not to award him any ‘Promotion Committee for additional activity in the interests of the institution’ special priority points for the 2003 promotion year;

| — | annul the appointing authority's implied decision rejecting the applicant's ‘appeal’ made to the Promotion Committee concerning the award of priority points to the Legal Service and the award of priority points for additional tasks; |
| --- | --- |

—

annul the appointing authority's implied decision rejecting the applicant's ‘appeal’ made to the Promotion Committee concerning the award of priority points to the Legal Service and the award of priority points for additional tasks;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments:

The applicant claims that the decision of the Director General of the Legal Service to award him four priority points amounts to infringement of Article 45 of the Staff Regulations and of Article 6(4) of the General Provisions giving effect to Article 45 of the Staff Regulations, and breach of the principle that officials are to have reasonable career prospects, and a manifest error of assessment. In addition, he alleges infringement of Article 6(3)(a) of the General Provisions giving effect to Article 45 of the Staff Regulations and breach of the principle that officials are to have reasonable career prospects, together with the principle of equal treatment. Thirdly, he alleges misuse of powers.

Moreover, the appointing authority's decision not to award him any priority points for additional duties is, according to the applicant, unlawful for it amounts to infringement of Article 9(1) and (2) of, and of Annex 1 to, the General Provisions giving effect to Article 45 of the Staff Regulations and breach of the principle of equal treatment.

Finally, the applicant claims that the appointing authority's decision not to award him any additional promotion points following his appeal to the promotion committee is unlawful, in that sufficient reasons have not been given for that decision.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/34 |
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Action brought on 11 August 2004 by House of Donuts International against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-334/04)

(2004/C 273/65)

Language in which the application was lodged: English

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 11 August 2004 by House of Donuts International, represented by N. Decker, lawyer with an address for service in Luxembourg.

Panrico S.A. was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | declare that the Community Trade Mark application No 938 670 of the applicant has to be accepted; |
| --- | --- |

—

declare that the Community Trade Mark application No 938 670 of the applicant has to be accepted;

| — | annul the Decision of the Fourth Board of Appeal of the OHMI of 12 May 2004 (Case R 1036/2001-4); |
| --- | --- |

—

annul the Decision of the Fourth Board of Appeal of the OHMI of 12 May 2004 (Case R 1036/2001-4);

| — | order the opponent to bear the costs incurred by the applicant. |
| --- | --- |

—

order the opponent to bear the costs incurred by the applicant.

Pleas in law and main arguments:

| Applicant for Community trade mark: | The applicant |
| --- | --- |
| Community trade mark concerned: | The figurative mark ‘House of donuts “The Finest American Pastries”’ for goods and services in classes 30, 32 and 42 (e.g. doughnuts, muffins, croissants, mineral and aerated waters and restaurant, cafeteria and catering services) — application No. 938 670 |
| Proprietor of mark or sign cited in the opposition proceedings: | Panrico S.A. |
| Trade mark or sign cited in opposition: | The Spanish word marks and figurative marks ‘DONUT’ and ‘donuts’ for goods and services in classes 30, 32 and 42 (e.g. all kinds of confectionary, pastry, sweets and candies, fruit drinks and fruits juices and services of cafeteria, bar, restaurant, hotel and camping) |
| Decision of the Opposition Division: | Rejection of the trade mark application |
| Decision of the Board of Appeal: | Dismissal of the applicant's appeal |
| Pleas in law: | The trade marks in competition are not similar. The opponent should not be granted the exclusive use of the words ‘donut’ or ‘donuts’. |

Applicant for Community trade mark:

The applicant

Community trade mark concerned:

The figurative mark ‘House of donuts “The Finest American Pastries”’ for goods and services in classes 30, 32 and 42 (e.g. doughnuts, muffins, croissants, mineral and aerated waters and restaurant, cafeteria and catering services) — application No. 938 670

Proprietor of mark or sign cited in the opposition proceedings:

Panrico S.A.

Trade mark or sign cited in opposition:

The Spanish word marks and figurative marks ‘DONUT’ and ‘donuts’ for goods and services in classes 30, 32 and 42 (e.g. all kinds of confectionary, pastry, sweets and candies, fruit drinks and fruits juices and services of cafeteria, bar, restaurant, hotel and camping)

Decision of the Opposition Division:

Rejection of the trade mark application

Decision of the Board of Appeal:

Dismissal of the applicant's appeal

Pleas in law:

The trade marks in competition are not similar. The opponent should not be granted the exclusive use of the words ‘donut’ or ‘donuts’.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/34 |
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Action brought on 11 August 2004 by Viz Stal and Duferco Commerciale SpA against the Council of the European Union

(Case T-335/04)

(2004/C 273/66)

Language of the case: English

An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 11 August 2004 by Viz Stal, Ekaterinburg (Russia) and Duferco Commerciale SpA, Genova (Italy), represented by R. Luff and J-F. Bellis, lawyers.

The applicant claims that the Court should:

| 1. | annul Council Regulation (EC) No 990/2004 of 17 May 2004 amending Regulation (EC) No 151/2003 imposing a definitive anti-dumping duty on imports of certain grain oriented electrical sheets originating in Russia insofar as it imposes a definitive anti-dumping duty on imports of the products concerned manufactured by Viz Stal and imported into the European Community by Duferco; |
| --- | --- |

1.

annul Council Regulation (EC) No 990/2004 of 17 May 2004 amending Regulation (EC) No 151/2003 imposing a definitive anti-dumping duty on imports of certain grain oriented electrical sheets originating in Russia insofar as it imposes a definitive anti-dumping duty on imports of the products concerned manufactured by Viz Stal and imported into the European Community by Duferco;

| 2. | order that the amendment of the rate of duty applicable to Viz Stal in the contested regulation shall remain provisionally in force until the competent institutions have adopted the measures necessary to comply with this judgement; |
| --- | --- |

2.

order that the amendment of the rate of duty applicable to Viz Stal in the contested regulation shall remain provisionally in force until the competent institutions have adopted the measures necessary to comply with this judgement;

| 3. | order the Council to bear the costs of the proceedings. |
| --- | --- |

3.

order the Council to bear the costs of the proceedings.

Pleas in law and main arguments:

The contested regulation (1) was adopted pursuant to an interim review initiated on the basis of a request lodged by the applicant, Viz Stal, and another request lodged by another Russian producer of the product. The requests were based on the grounds that the producers fulfilled the requirement to be granted market economy status and that their dumping margin had decreased.

In the framework of the interim review, which was limited to the determination of the dumping margin, the normal value and the export price for the applicant were calculated and, as a result, the anti-dumping margin for the applicant, Viz Stal, was determined. According to the applicants, the normal value and export price were unlawfully determined.

In support of their application, the applicants submit that the Commission infringed Articles 2(3) and 2(5) of the Basic Regulation (2) in rejecting the prices paid by Viz Stal to its supplier. According to the applicants, the Commission erroneously concluded that Viz Stal and its supplier, Magnitogorsk, were associated parties and that the prices charged were unreliable. In this regard, the applicants also submit a violation of their rights of defence as guaranteed in Article 18(4) of the Basic Regulation and Article 6.2 of the WTO Agreement on Anti-Dumping.

The applicants furthermore submit that the Commission infringed Articles 2(5) and 2(6) of the Basic Regulation, in increasing the financing costs incurred by Viz Stal, as reflected in its accounting records, by applying an interest rate on non-interest bearing loans granted by Vetrade, the holding company of Viz Stal. According to the applicants, no cost has actually been incurred by Viz Stal with respect to those loans, which cannot be compared to loans granted by independent third parties. The applicants also claim that the interest rate used by the Commission was arbitrary.

Finally, the applicants claim that the Commission erred in deducting twice the credit costs from the export price. The applicants submit that the Commission, on the one hand, deducted, pursuant to Article 2(9) of the basic regulation, the credit costs as part of the selling, general and administrative costs. On the other hand, the Commission also made, pursuant to Article 2(10) of the basic regulation, an adjustment to the export price for the credit costs related to payment terms granted by Duferco to the first independent buyer.

---

(1)  Council Regulation (EC) No 990/2004 of 17 May 2004 amending Regulation (EC) No 151/2003 imposing a definitive anti-dumping duty on imports of certain grain oriented electrical sheets originating in Russia (OJ L 182, p. 5).

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

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/35 |
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Action brought on 29 July 2004 by Athanasios Pitsiorlas against the Council of the European Union and the European Central Bank

(Case T-337/04)

(2004/C 273/67)

Language of the Case: Greek

An action against the Council of the European Union and the European Central Bank was brought before the Court of First Instance of the European Communities on 29 July 2004 by Athanasios Pitsiorlas, resident in Thessaloniki, Greece, represented by Dimitrios Papafilippou, lawyer.

The applicant claims that the Court should:

| — | order the two Community institutions jointly and severally to pay to him (i) as compensation for material damage, the sum which will result from the relevant calculations of the salary for the equivalent post at the ECB, over the period from April 2001 until three months after delivery of the Court of First Instance's judgment if it is favourable for the applicant, less his income as a lawyer in the corresponding period, and (ii) the sum of EUR 90 000 for non-material damage, together with legal interest from the bringing of the action; |
| --- | --- |

—

order the two Community institutions jointly and severally to pay to him (i) as compensation for material damage, the sum which will result from the relevant calculations of the salary for the equivalent post at the ECB, over the period from April 2001 until three months after delivery of the Court of First Instance's judgment if it is favourable for the applicant, less his income as a lawyer in the corresponding period, and (ii) the sum of EUR 90 000 for non-material damage, together with legal interest from the bringing of the action;

| — | order the two Community institutions to pay his court and other costs. |
| --- | --- |

—

order the two Community institutions to pay his court and other costs.

Pleas in law and main arguments:

The applicant previously brought an action before the Court of First Instance (Case T-3/00) (1) for annulment of the refusal of the Council and the European Central Bank to allow him access to the ‘Basle/Nyborg’ Agreement on the reinforcement of the European Monetary System. The applicant argued that he needed the agreement in order to complete the doctoral thesis that he was writing.

In his present action, the applicant pleads that the refusal of the Council and the European Central Bank to allow him access was unlawful for the same reasons as those pleaded by him in the previous action. In addition he pleads that, by reason of the refusal, he has been unable up until now to complete his doctoral thesis. He submits that as the possessor of a doctoral thesis specialising in economic and monetary law he would succeed in obtaining a job as a lawyer in an international body or organisation. He thus considers that he has suffered material damage equal to the difference between (i) the salary that he would have received from such a job in the period from April 2001 — when he would have completed his doctoral thesis and found such a job — until three months after delivery of the Court of First Instance's judgment and (ii) his past and future earnings over the same period working as a lawyer in Greece. By his action he thus seeks compensation for that material loss and the award of damages for non-material harm.

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(1)  OJ C 122, 29.4.2000, p. 35.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/36 |
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Action brought on 23 August 2004 by Ontex N.V. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-353/04)

(2004/C 273/68)

Language in which the application was lodged: English

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 23 August 2004 by Ontex N.V., Buggenhout (Belgium), represented by M. Du Tré, lawyer.

Curon Medical, Inc., Sunnyvale, California (USA) was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | annul the contested decision of the Second Board of Appeal of 5 July 2004 |
| --- | --- |

—

annul the contested decision of the Second Board of Appeal of 5 July 2004

| — | order the Office for Harmonisation in the Internal Market to pay the costs |
| --- | --- |

—

order the Office for Harmonisation in the Internal Market to pay the costs

Pleas in law and main arguments:

| Applicant for Community trade mark: | Curon Medical, Inc. |
| --- | --- |
| Community trade mark concerned: | Word mark ‘CURON’ for goods and services in classes 10, 41 and 42 (e.g. surgical, medical, dental and veterinary apparatus, instruments and devices except X-ray apparatus) — application No 1 934 868 |
| Proprietor of mark or sign cited in the opposition proceedings: | The applicant |
| Trade mark or sign cited in opposition: | Community word mark ‘EURON’ for goods and services in class 10 (e.g. surgical, medical, dental and veterinary apparatus, instruments and devices except X-ray apparatus) — Community trade mark No 762 351 |
| Decision of the Opposition Division: | Rejection of the trade mark application |
| Decision of the Board of Appeal: | Annulment of the decision of the Opposition Division and remittal of the case to the Opposition Division for further prosecution |
| Pleas in law: | Infringement of Article 8(1)(b) of Council Regulation No 40/94 |

Applicant for Community trade mark:

Curon Medical, Inc.

Community trade mark concerned:

Word mark ‘CURON’ for goods and services in classes 10, 41 and 42 (e.g. surgical, medical, dental and veterinary apparatus, instruments and devices except X-ray apparatus) — application No 1 934 868

Proprietor of mark or sign cited in the opposition proceedings:

The applicant

Trade mark or sign cited in opposition:

Community word mark ‘EURON’ for goods and services in class 10 (e.g. surgical, medical, dental and veterinary apparatus, instruments and devices except X-ray apparatus) — Community trade mark No 762 351

Decision of the Opposition Division:

Rejection of the trade mark application

Decision of the Board of Appeal:

Annulment of the decision of the Opposition Division and remittal of the case to the Opposition Division for further prosecution

Pleas in law:

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

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/36 |
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Official Journal of the European Union

C 273/36

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Action brought on 27 August 2004 by SmithKline Beecham p.l.c. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-356/04)

(2004/C 273/69)

Language in which the application was lodged: English

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 27 August 2004 by SmithKline Beecham, Brentford, (United Kingdom) represented by Dr V. von Bomhard, Dr A. Renck, Dr A. Pohlmann and I. Fowler, lawyers.

Warner-Lambert Consumer Healthcare S.Com.p.a. Milan, (Italy) was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

| — | annul the Decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 June 2004 in Case R0018/2004-1 |
| --- | --- |

—

annul the Decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 June 2004 in Case R0018/2004-1

| — | 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 Community trade mark: | SmithKline Beecham p.l.c. |
| --- | --- |
| Community trade mark concerned: | Word mark ACTIFAST for goods and services in class 5 (pharmaceutical applications) — application number OHMI 1 902 568 |
| Proprietor of mark or sign cited in the opposition proceedings: | Warner-Lambert Consumer Healthcare S. Com.p.a. |
| Trade mark or sign cited in opposition: | National word mark ACTIFED for goods and services in class 5 |
| Decision of the Opposition Division: | Opposition rejected |
| Decision of the Board of Appeal: | Appeal allowed, opposition allowed, registration denied |
| Pleas in law: | Violation of Article 8(1)(b) Council Regulation No 40/94 |

Applicant for Community trade mark:

SmithKline Beecham p.l.c.

Community trade mark concerned:

Word mark ACTIFAST for goods and services in class 5 (pharmaceutical applications) — application number OHMI 1 902 568

Proprietor of mark or sign cited in the opposition proceedings:

Warner-Lambert Consumer Healthcare S. Com.p.a.

Trade mark or sign cited in opposition:

National word mark ACTIFED for goods and services in class 5

Decision of the Opposition Division:

Opposition rejected

Decision of the Board of Appeal:

Appeal allowed, opposition allowed, registration denied

Pleas in law:

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

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/37 |
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Action brought on 3 September 2004 by Leonid Minin against the Commission of the European Communities

(Case T-362/04)

(2004/C 273/70)

Language of the case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 3 September 2004 by Leonid Minin, represented by Tito Ballerino and Corso Bovio, Lawyers.

The applicant claims that the Court should:

| — | annul point 13 of Annex I to Commission Regulation (EC) No 1149/2004 of 22 June 2004 amending Council Regulation (EC) No 872/2004 concerning further restrictive measures in relation to Liberia; |
| --- | --- |

—

annul point 13 of Annex I to Commission Regulation (EC) No 1149/2004 of 22 June 2004 amending Council Regulation (EC) No 872/2004 concerning further restrictive measures in relation to Liberia;

| — | annul that regulation in its entirety since it was adopted on the basis of an unlawful regulation (Regulation No 872/2004); |
| --- | --- |

—

annul that regulation in its entirety since it was adopted on the basis of an unlawful regulation (Regulation No 872/2004);

| — | declare the inapplicablility of Regulation No 872/2004 under Article 241 EC. |
| --- | --- |

—

declare the inapplicablility of Regulation No 872/2004 under Article 241 EC.

Pleas in law and main arguments:

The applicant in this case states that, by means of Regulation No 872/2004 of 29 April 2004, adopted on the basis of Council Common Position 2004/487/CFSP concerning the freezing of funds of the former Liberian President Charles Taylor and the persons and entities associated with him, the Community ordered the freezing of funds and economic resources owned or controlled, directly or indirectly, by those persons and entities, as listed in Annex I. Subsequently, on the basis of Article 11(a) of Regulation No 872/2004, the Commission issued Regulation (EC) No 1149/2004 of 22 June 2004 which amended the abovementioned Annex I, and named the applicant as also being covered by the measure.

In support of his claims, the applicant argues:

| — | unlawfulness of Regulation No 872/2004 (1) and Regulation No 1149/2004 (2), in so far as the resolutions of the United Nations Security Council, on the basis of which the Council Common Position 2004/487/CFSP was adopted, were addressed only to the Member States, as is apparent from the UN's status as a body having authority in international relations but no supranational power; |
| --- | --- |

—

unlawfulness of Regulation No 872/2004 (1) and Regulation No 1149/2004 (2), in so far as the resolutions of the United Nations Security Council, on the basis of which the Council Common Position 2004/487/CFSP was adopted, were addressed only to the Member States, as is apparent from the UN's status as a body having authority in international relations but no supranational power;

| — | incorrect legal basis of the contested measures: Regulation No 872/2004 purports to have as its legal basis Articles 60 and 301 of the EC Treaty, despite the fact that the two regulations in question relate to matters which fall outside the scope of those articles; |
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incorrect legal basis of the contested measures: Regulation No 872/2004 purports to have as its legal basis Articles 60 and 301 of the EC Treaty, despite the fact that the two regulations in question relate to matters which fall outside the scope of those articles;

| — | infringement of the right to property, a fundamental right protected by the Community order; |
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infringement of the right to property, a fundamental right protected by the Community order;

| — | breach of the rights of the defence, in so far as, first, the Community drafted the regulations in question in a roundabout way, issuing measures which are essentially a bundle of individual decisions and failing to carry out any real enquiry concerning the frozen funds, and secondly, the applicant is referred to in the measure by a series of personal descriptions for which no explanation is given and which may have misled the UN inspectors. |
| --- | --- |

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breach of the rights of the defence, in so far as, first, the Community drafted the regulations in question in a roundabout way, issuing measures which are essentially a bundle of individual decisions and failing to carry out any real enquiry concerning the frozen funds, and secondly, the applicant is referred to in the measure by a series of personal descriptions for which no explanation is given and which may have misled the UN inspectors.

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(1)  Council Regulation (EC) No 872/2004 of 29 April 2004 concerning further restrictive measures in relation to Liberia (OJ L 162 of 30.4.2004, p. 32).

(2)  Commission Regulation (EC) No 1149/2004 of 22 June 2004 amending Council Regulation (EC) No 872/2004 concerning further restrictive measures in relation to Liberia (OJ L 222 of 23.6.2004, p. 17).

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/38 |
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Official Journal of the European Union

C 273/38

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Action brought on 23 September 2004 by the Italian Republic against the Commission of the European Communities

(Case T-381/04)

(2004/C 273/71)

Language of the case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 23 September 2004 by the Italian Republic, represented by Maurizio Fiorilli, Avvocato dello Stato.

The applicant claims that the Court should:

| — | partially annul Commission Decision C(2004) 2762 final of 16 July 2004 and make such further ruling as may be necessary including with regard to the payment of the costs. |
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partially annul Commission Decision C(2004) 2762 final of 16 July 2004 and make such further ruling as may be necessary including with regard to the payment of the costs.

Pleas in law and main arguments:

The contested measure is Commission Decision C(2004) 2762 final of 16 June 2004 excluding from Community financing certain expenditure amounting to EUR 21 138 010 incurred by Italy under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund.

The measure is unlawful for failure adequately to state reasons, since it merely reproduces the viewpoint of the Commission without a critical examination of the facts pleaded by Italy during the checks.

In support of its claims, the applicant argues that:

| — | the financial recovery is based on an impermissible chain of presumptions. The basic presumption that the checks on the applications for livestock aid are unreliable is founded on the non-existence of the database for identifying and registering animals provided for in Regulation (EC) No 820/97, effective in respect of 1999, 2000, 2001 and 2002. However, a centralised database for the identification and the registration of animals has been in operation in Italy since 1997. That database, developed and operated by AIMA, was used to carry out cross-checks on individual requests for premiums. Since 1997, all payments for bovine animals have therefore been made after a systematic check that the items required for a premium are in the register and that the conditions for eligibility are complied with; |
| --- | --- |

—

the financial recovery is based on an impermissible chain of presumptions. The basic presumption that the checks on the applications for livestock aid are unreliable is founded on the non-existence of the database for identifying and registering animals provided for in Regulation (EC) No 820/97, effective in respect of 1999, 2000, 2001 and 2002. However, a centralised database for the identification and the registration of animals has been in operation in Italy since 1997. That database, developed and operated by AIMA, was used to carry out cross-checks on individual requests for premiums. Since 1997, all payments for bovine animals have therefore been made after a systematic check that the items required for a premium are in the register and that the conditions for eligibility are complied with;

| — | contrary to the Commission's assumption, the national instructions for on-the-spot checks for 2000 and 2001 did not prevent the cross-checks between the stocks of the holding and the data in the databases; |
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—

contrary to the Commission's assumption, the national instructions for on-the-spot checks for 2000 and 2001 did not prevent the cross-checks between the stocks of the holding and the data in the databases;

| — | the check on the items required for a premium in the 12 months preceding the controls were carried out by means of a comparison between the data collected by the holding and entered in the report and that in the AGEA's archives; |
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the check on the items required for a premium in the 12 months preceding the controls were carried out by means of a comparison between the data collected by the holding and entered in the report and that in the AGEA's archives;

| — | the definition of ‘cow’ and ‘heifer’ in the Italian provisions applied for the checks on the items required for a premium are consistent with Community provisions; |
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the definition of ‘cow’ and ‘heifer’ in the Italian provisions applied for the checks on the items required for a premium are consistent with Community provisions;

| — | the checks on the animals in the holding were made by applying the criteria in Regulation (EC) No 3887/92 and Regulation (EC) No 2419/2001; |
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the checks on the animals in the holding were made by applying the criteria in Regulation (EC) No 3887/92 and Regulation (EC) No 2419/2001;

| — | in the management of the premium on slaughter, the belated issue of the instructions for the checks was not irregular since the majority of the applications were made in the month of October and those instructions were able to be applied; |
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in the management of the premium on slaughter, the belated issue of the instructions for the checks was not irregular since the majority of the applications were made in the month of October and those instructions were able to be applied;

| — | contrary to the Commission's assertion, the physical checks and the checks on the identity of the animals at customs was not inadequate; |
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—

contrary to the Commission's assertion, the physical checks and the checks on the identity of the animals at customs was not inadequate;

| — | the Italian term ‘pasture’, which is material for the purposes of the extensification payment, is consistent with the particular characteristics of the national territory, and it is therefore unlawful to apply definitions which relate to different conditions in a country; |
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the Italian term ‘pasture’, which is material for the purposes of the extensification payment, is consistent with the particular characteristics of the national territory, and it is therefore unlawful to apply definitions which relate to different conditions in a country;

| — | the irregularities established in connection with on-the-spot checks of animals in the region of Latium do not take account of the fact that the herds are raised in a natural state and that it was proven that the checks required for the grant of the premium were carried out. |
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the irregularities established in connection with on-the-spot checks of animals in the region of Latium do not take account of the fact that the herds are raised in a natural state and that it was proven that the checks required for the grant of the premium were carried out.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/38 |
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Removal from the Register of Case T-118/04 R

(2004/C 273/72)

(Language of the case: English)

By order of 10 September 2004, the President of the Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-118/04 R, Giuseppe Caló v Commission of the European Communities.

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| 6.11.2004 | EN | Official Journal of the European Union | C 273/38 |
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6.11.2004

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Official Journal of the European Union

C 273/38

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Removal from the Register of Case T-134/04 R

(2004/C 273/73)

(Language of the case: French)

By order of 10 September 2004, the President of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-134/04 R, Giuseppe Caló v Commission of the European Communities.

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III Notices

| 6.11.2004 | EN | Official Journal of the European Union | C 273/39 |
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EN

Official Journal of the European Union

C 273/39

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(2004/C 273/74)

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

OJ C 262, 23.10.2004

Past publications

OJ C 251, 9.10.2004

OJ C 239, 25.9.2004

OJ C 228, 11.9.2004

OJ C 217, 28.8.2004

OJ C 201, 7.8.2004

OJ C 190, 24.7.2004

These texts are available on:

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

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

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