# Official Journal C 239/25 S

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 239 |
| | |
| English edition | Information and Notices | Volume 4725 September 2004 |

ISSN 1725-2423

Official Journal

of the European Union

C 239

English edition

Information and Notices

Volume 4725 September 2004

---

| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2004/C 239/1 | Case C-289/04 P: Appeal brought on 1 July 2004 by Showa Denko K.K. against the judgment delivered on 29 April 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 between Tokai Carbon Co. Ltd and others and the Commission of the European Communities | 1 |
| 2004/C 239/2 | Case C-307/04 P: Appeal brought on 15 July 2004 by SEC Corporation against the judgment delivered on 29 April 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 between Tokai Carbon Co. Ltd and others and the Commission of the European Communities. | 1 |
| 2004/C 239/3 | Case C-309/04: Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 20 April 2004 in the case of Fleisch-Winter GmbH & Co. KG against Hauptzollamt Hamburg-Jonas | 2 |
| 2004/C 239/4 | Case C-311/04: Reference for a preliminary ruling by the Gerechtshof te Amsterdam by decision of that court of 28 June 2004 in the case of B.V. Algemene Scheeps Agentuur Dordrecht against Inspecteur van de Belastingdienst – Douanedistrict Rotterdam | 3 |
| 2004/C 239/5 | Case C-313/04: Reference for a preliminary ruling by the Verwaltungsgericht Frankfurt am Main by order of that court of 24 June 2004 in the case of Franz Egenberger GmbH Molkerei und Trockenwerk against Bundesanstalt für Landwirtschaft und Ernährung | 3 |
| 2004/C 239/6 | Case C-316/04: Reference for a preliminary ruling by the College van Beroep voor het bedrijfsleven by order of that court of 22 July 2004 in the case of Stichting Zuid-Hollandse Milieufederatie against College voor de toelating van bestrijdingsmiddelen (Ctb) | 3 |
| 2004/C 239/7 | Cases C-321/04, C-322/04, C-323/04, C-324/04, C-325/04: References for a preliminary ruling from the Cour d'Appel de Lyon by judgments of 24 February 2004, in the following cases SAS Distribution Casino France, as successor to Casino France, against Organic de recouvrement (Caisse Nationale de l'Organisation Autonome d'Assurance Vieillesse des Travailleurs Non-Salariés des Professions Industrielles et Commerciales), Casino France, as successor to SA Imquef, in turn successor to SA Judis, against Organic de recouvrement (Caisse Nationale de l'Organisation Autonome d'Assurance Vieillesse des Travailleurs Non-Salariés des Professions Industrielles et Commerciales), SA Dechrist Holding against Organic de recouvrement (Caisse Nationale de l'Organisation Autonome d'Assurance Vieillesse des Travailleurs Non-Salariés des Professions Industrielles et Commerciales), SA Komogo against Organic de recouvrement (Caisse Nationale de l'Organisation Autonome d'Assurance Vieillesse des Travailleurs Non-Salariés des Professions Industrielles et Commerciales), SARL Tout pour la maison against Organic de recouvrement (Caisse Nationale de l'Organisation Autonome d'Assurance Vieillesse des Travailleurs Non-Salariés des Professions Industrielles et Commerciales) | 4 |
| 2004/C 239/8 | Case C-331/04: Reference for a preliminary ruling by the Consiglio di Stato, in sede giurisdizionale (Sesta Sezione), by order of that court of 6 April 2004 in the case of A.T.I. E.A.C. srl and VIAGGI DI MAIO SNC against A.C.T.V. Venezia spa | 5 |
| 2004/C 239/9 | Case C-256/04: Action brought on 15 June 2004 by the Commission of the European Communities against the Hellenic Republic | 5 |
| 2004/C 239/0 | Case C-273/04: Action brought on 28 June 2004 by the Republic of Poland against the Council of the European Union | 6 |
| 2004/C 239/1 | Case C-326/04: Action brought on 27 July 2004 by the Commission of the European Communities against the Hellenic Republic | 7 |
| 2004/C 239/2 | Case C-327/04: Action brought on 27 July 2004 by the Commission of the European Communities against the Republic of Finland | 7 |
| 2004/C 239/3 | Case C-329/04: Action brought on 29 July 2004 by the Commission of the European Communities against the Federal Republic of Germany | 7 |
| 2004/C 239/4 | Case C-334/04: Action brought on 30 July 2004 by the Commission of the European Communities against the Hellenic Republic | 8 |
| 2004/C 239/5 | Case C-335/04: Action brought on 30 July 2004 by the Commission of the European Communities against the Republic of Austria | 8 |
| 2004/C 239/6 | Case C-337/04: Action brought on 2 August 2004 by the Commission of the European Communities against the French Republic | 9 |
| 2004/C 239/7 | Case C-349/04: Action brought on 13 August 2004 by the Commission of the European Communities against the Grand Duchy of Luxembourg | 9 |
| 2004/C 239/8 | Removal from the register of Case C-401/02 | 10 |
| 2004/C 239/9 | Removal from the register of Case C-322/03 | 10 |
| 2004/C 239/0 | Removal from the register of Case C-418/03 | 10 |
| 2004/C 239/1 | Removal from the register of Case C-534/03 | 10 |
| 2004/C 239/2 | Removal from the register of Case C-76/04 | 10 |
| | COURT OF JUSTICE AND COURT OF FIRST INSTANCE |
| 2004/C 239/3 | By orders of 8 June 2004, the Court of Justice of the European Communities, pursuant to Article 2 of Council Decision 2004/407/EC, Euratom of 26 April 2004 amending Articles 51 and 54 of the Protocol on the Statute of the Court of Justice, referred the cases listed in the left-hand column of the table below to the Court of First Instance. | 11 |
| | COURT OF FIRST INSTANCE |
| 2004/C 239/4 | Judgment of the Court of First Instance of 8 July 2004 in Case T-44/00: Mannesmannröhren-Werke v Commission of the European Communities (Competition — Cartels — Markets in seamless steel tubes — Duration of the infringement — Fines) | 12 |
| 2004/C 239/5 | Judgment of the Court of First Instance of 8 July 2004 in Case T-48/00: Corus UK Ltd v Commission of the European Communities (Competition — Agreements — Seamless steel tubes market — Duration of the infringement — Fines) | 12 |
| 2004/C 239/6 | Judgment of the Court of First Instance of 8 July 2004 in Case T-50/00: Dalmine SpA v Commission of the European Communities (Competition — Cartels — Markets for seamless steel pipes and tubes — Duration of the infringement — Fines) | 13 |
| 2004/C 239/7 | Judgment of the Court of First Instance of 8 July 2004 in Joined Cases T-67/00, T-68/00, T-7100 and T-78/00: JFE Engineering Corp and Others v Commission of the European Communities (Cartels — Market in seamless steel tubes and pipes — EFTA — Powers of the Commission — Infringement — Fines) | 13 |
| 2004/C 239/8 | Judgment of the Court of First Instance of 1 July 2004 in Case T-308/00: Salzgitter AG v Commission of the European Communities (State aid — Article 4(c) CS, Articles 67 CS and 95 CS — Financial intervention in favour of the undertaking Salzgitter — Border between the former German Democratic Republic and former Czechoslovak Socialist Republic — Non-notified aid — Sixth Steel Aid Code — Legal certainty) | 14 |
| 2004/C 239/9 | Judgment of the Court of First Instance of 7 July 2004 in Joined Cases T-107/01 and T-175/01: Société des mines de Sacilor — Lormines SA v Commission of the European Communities (ECSC Treaty — Steel — Abandonment of mining concessions — Charges imposed on mining undertakings by the French Republic — Complaint — No favourable response from the Commission — Action for failure to act — Action for annulment — Admissibility — Capacity to bring proceedings — Undertaking within the meaning of Article 80 CS) | 14 |
| 2004/C 239/0 | Judgment of the Court of First Instance of 8 July 2004 in Case T-198/01: Technische Glaswerke Ilmenau GmbH v Commission of the European Communities (State aid — Action for annulment — Private creditor test — Aid for rescuing and restructuring firms in difficulty — Rights of the defence — Statement of reasons) | 15 |
| 2004/C 239/1 | Judgment of the Court of First Instance of 6 July 2004 in Case T-281/01: Hubert Huygens v Commission of the European Communities (Officials — Reporting procedure — Delay in the drawing-up of the staff report — Reasonable period — Action for damages — Material and non-material damage — Promotions procedure — Implied rejection of the applicant's promotion — Action for annulment — Decision not to promote the applicant in the 2000 promotions procedure — Lack of statement of reasons — Decision to promote 54 officials in the 2000 promotions procedure — Inadmissibility) | 15 |
| 2004/C 239/2 | Judgment of the Court of First Instance of 30 June 2004 in Case T-317/01: M+M Gesellschaft für Unternehmensberatung und Informationssysteme mbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Application for verbal mark ‘M+M EUROdATA’ — Earlier verbal mark EURODATA TV — Relative grounds for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 16 |
| 2004/C 239/3 | Judgment of the Court of First Instance of 8 July 2004 in Case T-334/01: MFE Marienfelde GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Earlier word mark HIPPOVIT — Application for Community word mark HIPOVITON — Genuine use of the earlier trade mark — Article 43(2) and (3) of Regulation (EC) No 40/94 — Right to be heard) | 16 |
| 2004/C 239/4 | Judgment of the Court of First Instance of 30 June 2004 in Case T-107/02: GE Betz Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition procedure — Earlier figurative mark — Application for Community word mark BIOMATE — Failure to produce evidence in the language of the opposition proceedings — Legitimate expectation — Rules 16, 17 and 18 of Regulation (EC) No 2868/95) | 17 |
| 2004/C 239/5 | Judgment of the Court of First Instance of 13 July 2004 in Case T-115/02: AVEX Inc v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition procedure — Application for a Community figurative mark comprising the letter ‘a’ — Earlier Community figurative mark comprising the letter ‘a’ — Likelihood of confusion) | 17 |
| 2004/C 239/6 | Judgment of the Court of First Instance of 6 July 2004 in Case T-117/02: Grupo El Prado Cervera, SL v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Application for Community word mark ‘CHUFAFIT’ — Earlier national word and figurative marks ‘CHUFI’ — Likelihood of confusion — Likelihood of association — Article 8(1)(b) of Regulation (EC) No 40/94) | 18 |
| 2004/C 239/7 | Judgment of the Court of First Instance of 15 July 2004 in Joined Cases T-180/02 and T-113/03: Georgios Gouvras v Commission of the European Communities (Officials — Posting — Secondment in the interest of the service — Change with retrospective effect of the place of employment and of the financial entitlements relating to it — Recovery of undue payment — Installation allowance and daily subsistence allowance — Transfer of part of emoluments from the place of posting) | 18 |
| 2004/C 239/8 | Judgment of the Court of First Instance of 30 June 2004 in Case T-186/02: BMI Bertollo Srl v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition procedure — Earlier DIESEL word marks — Application for Community figurative trade mark DIESELIT — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94) | 19 |
| 2004/C 239/9 | Judgment of the Court of First Instance of 8 July 2004 in Case T-203/02: The Sunrider Corp. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Earlier word mark VITAFRUT — Application for Community word mark VITAFRUIT — Genuine use of the earlier trade mark — Similarity of products — Article 8(1)(b), Article 15 and Article 43(2) and (3) of Regulation (EC) No 40/94) | 19 |
| 2004/C 239/0 | Judgment of the Court of First Instance of 8 July 2004 in Case T-270/02: MLP Finanzdienstleistungen AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Word mark ‘bestpartner’ — Absolute grounds for refusing registration — Article 7(1)(b) and (c) of Regulation (EC) No 40/94 — Mark devoid of distinctive character — Descriptive mark) | 20 |
| 2004/C 239/1 | Judgment of the Court of First Instance of 30 June 2004 in Case T-281/02: Norma Lebensmittelfilialbetrieb GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Word mark ‘Mehr für Ihr Geld’ — Absolute grounds for refusal — Distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94) | 20 |
| 2004/C 239/2 | Judgment of the Court of First Instance of 8 July 2004 in Case T-289/02: Telepharmacy Solutions Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Word mark TELEPHARMACY SOLUTIONS — Absolute grounds for refusal — Article 7(1)(c) of Regulation (EC) No 40/94 — Observance of the rights of defence) | 20 |
| 2004/C 239/3 | Judgment of the Court of First Instance of 15 July 2004 in Case T-384/02: Fernando Valenzuela Marzo v Commission of the European Communities (Officials — Pay — Installation allowance — Article 9(3) of Annex VII to the Staff Regulations — Period of one year) | 21 |
| 2004/C 239/4 | Judgment of the Court of First Instance of 13 July 2004 in Case T-115/03: Samar SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Application for Community word mark GAS STATION — Earlier national figurative mark BLUE JEANS GAS — Registration refused) | 21 |
| 2004/C 239/5 | Judgment of the Court of First Instance of 8 July 2004 in Case T-136/03: Robert Charles Schochaert v Council of the European Union (Officials — Action for damages — Refusal of promotion — Emotional harassment — Duty of assistance) | 21 |
| 2004/C 239/6 | Judgment of the Court of First Instance of 7 July 2003 in Case T-175/03: Norbert Schmitt v European Agency for Reconstruction (EAR) (Member of the temporary staff — Termination of contract — Article 47(2)(a) of the CEOS — Observance of the provisions of the contract — Legitimate expectations) | 22 |
| 2004/C 239/7 | Judgment of the Court of First Instance of 29 June 2004 in Case T-188/03: Joëlle Hivonnet v Council of the European Union (Officials — Education allowance — Criteria for grant — Primary schooling — Nursery school) | 22 |
| 2004/C 239/8 | Order of the President of the Court of First Instance of 12 May 2004 in Case T-198/01 R [III]: Technische Glaswerke Ilmenau GmbH v Commission of the European Communities (Proceedings for interim measures — State aid — Obligation to recover aid — Prima facie case — Urgency — Weighing up of interests — Exceptional circumstances) | 22 |
| 2004/C 239/9 | Order of the Court of First Instance of 7 June 2004 in Case T-230/02: X v Commission of the European Communities (Action for damages — Prior complaint through official channels — Action in part devoid of any legal basis and in part inadmissible) | 23 |
| 2004/C 239/0 | Order of the Court of First Instance (Fourth Chamber) of 27 May 2004 in Case T-379/02: Antonio Di Adolfo v Commission of the European Communities (Action for annulment — Time-limits — Claim for compensation — Originating application — Formal requirements — Injunction against an institution — Manifestly inadmissible) | 23 |
| 2004/C 239/1 | Order of the Court of First Instance of 6 May 2004 in Case T-34/03: André Hecq v Commission of the European Communities (Staff cases — Act adversely affecting an official — Capacity to bring proceedings — Official acting personally and not on behalf of a trade union organisation — Inadmissibility) | 23 |
| 2004/C 239/2 | Order of the Court of First Instance of 10 May 2004 in Joined Cases T-314/03 and T-378/03: Musée Grévin SA v Commission of the European Communities (PHARE/JOP Programme — Joint venture project in Poland — Community financing — Claim for reimbursement of the full amount paid — Arbitration clause — Action for annulment — Inadmissibility) | 24 |
| 2004/C 239/3 | Order of the President of the Court of First Instance of 9 June 2004 in Case T-91/04 R: Alexander Just v Commission of the European Communities (Proceedings for interim measures — Competition procedure — Suspension of enforcement — Admissibility) | 24 |
| 2004/C 239/4 | Order of the President of the Court of First Instance of 9 June 2004 in Case T-92/04 R: Marta Christina Moren Abat v Commission of the European Communities (Interim measures — Competition — Suspension of operation — Admissibility) | 24 |
| 2004/C 239/5 | Case T-150/04: Action brought on 23 April 2004 by Mühlens GmbH & Co. KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 25 |
| 2004/C 239/6 | Case T-208/04: Action brought on 7 June 2004 by Dominique Hardy against the Council of the European Union and the Commission of the European Communities | 25 |
| 2004/C 239/7 | Case T-265/04: Action brought on 24 June 2004 by Adriatica di Navigazione S.p.A. against the Commission of the European Communities | 26 |
| 2004/C 239/8 | Removal from the Register of Case T-14/00 | 27 |
| 2004/C 239/9 | Removal from the Register of Case T-236/99 | 27 |
| 2004/C 239/0 | Removal from the Register of Case T-263/99 | 28 |
| 2004/C 239/1 | Removal from the Register of Case T-264/99 | 28 |
| 2004/C 239/2 | Removal from the Register of Case T-280/99 | 28 |
| 2004/C 239/3 | Removal from the Register of Case T-284/99 | 28 |
| 2004/C 239/4 | Removal from the Register of Case T-325/03 | 28 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2004/C 239/1

Case C-289/04 P: Appeal brought on 1 July 2004 by Showa Denko K.K. against the judgment delivered on 29 April 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 between Tokai Carbon Co. Ltd and others and the Commission of the European Communities

1

2004/C 239/2

Case C-307/04 P: Appeal brought on 15 July 2004 by SEC Corporation against the judgment delivered on 29 April 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 between Tokai Carbon Co. Ltd and others and the Commission of the European Communities.

1

2004/C 239/3

Case C-309/04: Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 20 April 2004 in the case of Fleisch-Winter GmbH & Co. KG against Hauptzollamt Hamburg-Jonas

2

2004/C 239/4

Case C-311/04: Reference for a preliminary ruling by the Gerechtshof te Amsterdam by decision of that court of 28 June 2004 in the case of B.V. Algemene Scheeps Agentuur Dordrecht against Inspecteur van de Belastingdienst – Douanedistrict Rotterdam

3

2004/C 239/5

Case C-313/04: Reference for a preliminary ruling by the Verwaltungsgericht Frankfurt am Main by order of that court of 24 June 2004 in the case of Franz Egenberger GmbH Molkerei und Trockenwerk against Bundesanstalt für Landwirtschaft und Ernährung

3

2004/C 239/6

Case C-316/04: Reference for a preliminary ruling by the College van Beroep voor het bedrijfsleven by order of that court of 22 July 2004 in the case of Stichting Zuid-Hollandse Milieufederatie against College voor de toelating van bestrijdingsmiddelen (Ctb)

3

2004/C 239/7

Cases C-321/04, C-322/04, C-323/04, C-324/04, C-325/04: References for a preliminary ruling from the Cour d'Appel de Lyon by judgments of 24 February 2004, in the following cases SAS Distribution Casino France, as successor to Casino France, against Organic de recouvrement (Caisse Nationale de l'Organisation Autonome d'Assurance Vieillesse des Travailleurs Non-Salariés des Professions Industrielles et Commerciales), Casino France, as successor to SA Imquef, in turn successor to SA Judis, against Organic de recouvrement (Caisse Nationale de l'Organisation Autonome d'Assurance Vieillesse des Travailleurs Non-Salariés des Professions Industrielles et Commerciales), SA Dechrist Holding against Organic de recouvrement (Caisse Nationale de l'Organisation Autonome d'Assurance Vieillesse des Travailleurs Non-Salariés des Professions Industrielles et Commerciales), SA Komogo against Organic de recouvrement (Caisse Nationale de l'Organisation Autonome d'Assurance Vieillesse des Travailleurs Non-Salariés des Professions Industrielles et Commerciales), SARL Tout pour la maison against Organic de recouvrement (Caisse Nationale de l'Organisation Autonome d'Assurance Vieillesse des Travailleurs Non-Salariés des Professions Industrielles et Commerciales)

4

2004/C 239/8

Case C-331/04: Reference for a preliminary ruling by the Consiglio di Stato, in sede giurisdizionale (Sesta Sezione), by order of that court of 6 April 2004 in the case of A.T.I. E.A.C. srl and VIAGGI DI MAIO SNC against A.C.T.V. Venezia spa

5

2004/C 239/9

Case C-256/04: Action brought on 15 June 2004 by the Commission of the European Communities against the Hellenic Republic

5

2004/C 239/0

Case C-273/04: Action brought on 28 June 2004 by the Republic of Poland against the Council of the European Union

6

2004/C 239/1

Case C-326/04: Action brought on 27 July 2004 by the Commission of the European Communities against the Hellenic Republic

7

2004/C 239/2

Case C-327/04: Action brought on 27 July 2004 by the Commission of the European Communities against the Republic of Finland

7

2004/C 239/3

Case C-329/04: Action brought on 29 July 2004 by the Commission of the European Communities against the Federal Republic of Germany

7

2004/C 239/4

Case C-334/04: Action brought on 30 July 2004 by the Commission of the European Communities against the Hellenic Republic

8

2004/C 239/5

Case C-335/04: Action brought on 30 July 2004 by the Commission of the European Communities against the Republic of Austria

8

2004/C 239/6

Case C-337/04: Action brought on 2 August 2004 by the Commission of the European Communities against the French Republic

9

2004/C 239/7

Case C-349/04: Action brought on 13 August 2004 by the Commission of the European Communities against the Grand Duchy of Luxembourg

9

2004/C 239/8

Removal from the register of Case C-401/02

10

2004/C 239/9

Removal from the register of Case C-322/03

10

2004/C 239/0

Removal from the register of Case C-418/03

10

2004/C 239/1

Removal from the register of Case C-534/03

10

2004/C 239/2

Removal from the register of Case C-76/04

10

COURT OF JUSTICE AND COURT OF FIRST INSTANCE

2004/C 239/3

By orders of 8 June 2004, the Court of Justice of the European Communities, pursuant to Article 2 of Council Decision 2004/407/EC, Euratom of 26 April 2004 amending Articles 51 and 54 of the Protocol on the Statute of the Court of Justice, referred the cases listed in the left-hand column of the table below to the Court of First Instance.

11

COURT OF FIRST INSTANCE

2004/C 239/4

Judgment of the Court of First Instance of 8 July 2004 in Case T-44/00: Mannesmannröhren-Werke v Commission of the European Communities (Competition — Cartels — Markets in seamless steel tubes — Duration of the infringement — Fines)

12

2004/C 239/5

Judgment of the Court of First Instance of 8 July 2004 in Case T-48/00: Corus UK Ltd v Commission of the European Communities (Competition — Agreements — Seamless steel tubes market — Duration of the infringement — Fines)

12

2004/C 239/6

Judgment of the Court of First Instance of 8 July 2004 in Case T-50/00: Dalmine SpA v Commission of the European Communities (Competition — Cartels — Markets for seamless steel pipes and tubes — Duration of the infringement — Fines)

13

2004/C 239/7

Judgment of the Court of First Instance of 8 July 2004 in Joined Cases T-67/00, T-68/00, T-7100 and T-78/00: JFE Engineering Corp and Others v Commission of the European Communities (Cartels — Market in seamless steel tubes and pipes — EFTA — Powers of the Commission — Infringement — Fines)

13

2004/C 239/8

Judgment of the Court of First Instance of 1 July 2004 in Case T-308/00: Salzgitter AG v Commission of the European Communities (State aid — Article 4(c) CS, Articles 67 CS and 95 CS — Financial intervention in favour of the undertaking Salzgitter — Border between the former German Democratic Republic and former Czechoslovak Socialist Republic — Non-notified aid — Sixth Steel Aid Code — Legal certainty)

14

2004/C 239/9

Judgment of the Court of First Instance of 7 July 2004 in Joined Cases T-107/01 and T-175/01: Société des mines de Sacilor — Lormines SA v Commission of the European Communities (ECSC Treaty — Steel — Abandonment of mining concessions — Charges imposed on mining undertakings by the French Republic — Complaint — No favourable response from the Commission — Action for failure to act — Action for annulment — Admissibility — Capacity to bring proceedings — Undertaking within the meaning of Article 80 CS)

14

2004/C 239/0

Judgment of the Court of First Instance of 8 July 2004 in Case T-198/01: Technische Glaswerke Ilmenau GmbH v Commission of the European Communities (State aid — Action for annulment — Private creditor test — Aid for rescuing and restructuring firms in difficulty — Rights of the defence — Statement of reasons)

15

2004/C 239/1

Judgment of the Court of First Instance of 6 July 2004 in Case T-281/01: Hubert Huygens v Commission of the European Communities (Officials — Reporting procedure — Delay in the drawing-up of the staff report — Reasonable period — Action for damages — Material and non-material damage — Promotions procedure — Implied rejection of the applicant's promotion — Action for annulment — Decision not to promote the applicant in the 2000 promotions procedure — Lack of statement of reasons — Decision to promote 54 officials in the 2000 promotions procedure — Inadmissibility)

15

2004/C 239/2

Judgment of the Court of First Instance of 30 June 2004 in Case T-317/01: M+M Gesellschaft für Unternehmensberatung und Informationssysteme mbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Application for verbal mark ‘M+M EUROdATA’ — Earlier verbal mark EURODATA TV — Relative grounds for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

16

2004/C 239/3

Judgment of the Court of First Instance of 8 July 2004 in Case T-334/01: MFE Marienfelde GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Earlier word mark HIPPOVIT — Application for Community word mark HIPOVITON — Genuine use of the earlier trade mark — Article 43(2) and (3) of Regulation (EC) No 40/94 — Right to be heard)

16

2004/C 239/4

Judgment of the Court of First Instance of 30 June 2004 in Case T-107/02: GE Betz Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition procedure — Earlier figurative mark — Application for Community word mark BIOMATE — Failure to produce evidence in the language of the opposition proceedings — Legitimate expectation — Rules 16, 17 and 18 of Regulation (EC) No 2868/95)

17

2004/C 239/5

Judgment of the Court of First Instance of 13 July 2004 in Case T-115/02: AVEX Inc v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition procedure — Application for a Community figurative mark comprising the letter ‘a’ — Earlier Community figurative mark comprising the letter ‘a’ — Likelihood of confusion)

17

2004/C 239/6

Judgment of the Court of First Instance of 6 July 2004 in Case T-117/02: Grupo El Prado Cervera, SL v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Application for Community word mark ‘CHUFAFIT’ — Earlier national word and figurative marks ‘CHUFI’ — Likelihood of confusion — Likelihood of association — Article 8(1)(b) of Regulation (EC) No 40/94)

18

2004/C 239/7

Judgment of the Court of First Instance of 15 July 2004 in Joined Cases T-180/02 and T-113/03: Georgios Gouvras v Commission of the European Communities (Officials — Posting — Secondment in the interest of the service — Change with retrospective effect of the place of employment and of the financial entitlements relating to it — Recovery of undue payment — Installation allowance and daily subsistence allowance — Transfer of part of emoluments from the place of posting)

18

2004/C 239/8

Judgment of the Court of First Instance of 30 June 2004 in Case T-186/02: BMI Bertollo Srl v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition procedure — Earlier DIESEL word marks — Application for Community figurative trade mark DIESELIT — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

19

2004/C 239/9

Judgment of the Court of First Instance of 8 July 2004 in Case T-203/02: The Sunrider Corp. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Earlier word mark VITAFRUT — Application for Community word mark VITAFRUIT — Genuine use of the earlier trade mark — Similarity of products — Article 8(1)(b), Article 15 and Article 43(2) and (3) of Regulation (EC) No 40/94)

19

2004/C 239/0

Judgment of the Court of First Instance of 8 July 2004 in Case T-270/02: MLP Finanzdienstleistungen AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Word mark ‘bestpartner’ — Absolute grounds for refusing registration — Article 7(1)(b) and (c) of Regulation (EC) No 40/94 — Mark devoid of distinctive character — Descriptive mark)

20

2004/C 239/1

Judgment of the Court of First Instance of 30 June 2004 in Case T-281/02: Norma Lebensmittelfilialbetrieb GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Word mark ‘Mehr für Ihr Geld’ — Absolute grounds for refusal — Distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94)

20

2004/C 239/2

Judgment of the Court of First Instance of 8 July 2004 in Case T-289/02: Telepharmacy Solutions Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Word mark TELEPHARMACY SOLUTIONS — Absolute grounds for refusal — Article 7(1)(c) of Regulation (EC) No 40/94 — Observance of the rights of defence)

20

2004/C 239/3

Judgment of the Court of First Instance of 15 July 2004 in Case T-384/02: Fernando Valenzuela Marzo v Commission of the European Communities (Officials — Pay — Installation allowance — Article 9(3) of Annex VII to the Staff Regulations — Period of one year)

21

2004/C 239/4

Judgment of the Court of First Instance of 13 July 2004 in Case T-115/03: Samar SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Application for Community word mark GAS STATION — Earlier national figurative mark BLUE JEANS GAS — Registration refused)

21

2004/C 239/5

Judgment of the Court of First Instance of 8 July 2004 in Case T-136/03: Robert Charles Schochaert v Council of the European Union (Officials — Action for damages — Refusal of promotion — Emotional harassment — Duty of assistance)

21

2004/C 239/6

Judgment of the Court of First Instance of 7 July 2003 in Case T-175/03: Norbert Schmitt v European Agency for Reconstruction (EAR) (Member of the temporary staff — Termination of contract — Article 47(2)(a) of the CEOS — Observance of the provisions of the contract — Legitimate expectations)

22

2004/C 239/7

Judgment of the Court of First Instance of 29 June 2004 in Case T-188/03: Joëlle Hivonnet v Council of the European Union (Officials — Education allowance — Criteria for grant — Primary schooling — Nursery school)

22

2004/C 239/8

Order of the President of the Court of First Instance of 12 May 2004 in Case T-198/01 R [III]: Technische Glaswerke Ilmenau GmbH v Commission of the European Communities (Proceedings for interim measures — State aid — Obligation to recover aid — Prima facie case — Urgency — Weighing up of interests — Exceptional circumstances)

22

2004/C 239/9

Order of the Court of First Instance of 7 June 2004 in Case T-230/02: X v Commission of the European Communities (Action for damages — Prior complaint through official channels — Action in part devoid of any legal basis and in part inadmissible)

23

2004/C 239/0

Order of the Court of First Instance (Fourth Chamber) of 27 May 2004 in Case T-379/02: Antonio Di Adolfo v Commission of the European Communities (Action for annulment — Time-limits — Claim for compensation — Originating application — Formal requirements — Injunction against an institution — Manifestly inadmissible)

23

2004/C 239/1

Order of the Court of First Instance of 6 May 2004 in Case T-34/03: André Hecq v Commission of the European Communities (Staff cases — Act adversely affecting an official — Capacity to bring proceedings — Official acting personally and not on behalf of a trade union organisation — Inadmissibility)

23

2004/C 239/2

Order of the Court of First Instance of 10 May 2004 in Joined Cases T-314/03 and T-378/03: Musée Grévin SA v Commission of the European Communities (PHARE/JOP Programme — Joint venture project in Poland — Community financing — Claim for reimbursement of the full amount paid — Arbitration clause — Action for annulment — Inadmissibility)

24

2004/C 239/3

Order of the President of the Court of First Instance of 9 June 2004 in Case T-91/04 R: Alexander Just v Commission of the European Communities (Proceedings for interim measures — Competition procedure — Suspension of enforcement — Admissibility)

24

2004/C 239/4

Order of the President of the Court of First Instance of 9 June 2004 in Case T-92/04 R: Marta Christina Moren Abat v Commission of the European Communities (Interim measures — Competition — Suspension of operation — Admissibility)

24

2004/C 239/5

Case T-150/04: Action brought on 23 April 2004 by Mühlens GmbH & Co. KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

25

2004/C 239/6

Case T-208/04: Action brought on 7 June 2004 by Dominique Hardy against the Council of the European Union and the Commission of the European Communities

25

2004/C 239/7

Case T-265/04: Action brought on 24 June 2004 by Adriatica di Navigazione S.p.A. against the Commission of the European Communities

26

2004/C 239/8

Removal from the Register of Case T-14/00

27

2004/C 239/9

Removal from the Register of Case T-236/99

27

2004/C 239/0

Removal from the Register of Case T-263/99

28

2004/C 239/1

Removal from the Register of Case T-264/99

28

2004/C 239/2

Removal from the Register of Case T-280/99

28

2004/C 239/3

Removal from the Register of Case T-284/99

28

2004/C 239/4

Removal from the Register of Case T-325/03

28

| | III   Notices |
| --- | --- |
| 2004/C 239/5 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 228, 11.9.2004 | 29 |

III   Notices

2004/C 239/5

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 228, 11.9.2004

Official Journal of the European Union

29

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

EN

---

I Information

Court of Justice

COURT OF JUSTICE

| 25.9.2004 | EN | Official Journal of the European Union | C 239/1 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/1

---

Appeal brought on 1 July 2004 by Showa Denko K.K. against the judgment delivered on 29 April 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 between Tokai Carbon Co. Ltd and others and the Commission of the European Communities

(Case C-289/04 P)

(2004/C 239/01)

An appeal against the judgment delivered on 29 April 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 between Tokai Carbon Co. Ltd and others and the Commission of the European Communities, was brought before the Court of Justice of the European Communities on 1 July 2004 by Showa Denko K.K. (case T-245/01 (1)), established in Tokyo (Japan), represented by M. Dolmans, J. Temple Lang and P. Werdmuller, lawyers.

The Appellant claims that the Court should:

| — | set aside the judgment in case T-245/01 Showa Denko K.K. v. Commission of the European Communities in part; |
| --- | --- |

—

set aside the judgment in case T-245/01 Showa Denko K.K. v. Commission of the European Communities in part;

| — | reduce the amount of the Appellant's fine to EUR 6,960,000 or by an amount considered appropriate by the Court of Justice in the exercise of its discretion; and |
| --- | --- |

—

reduce the amount of the Appellant's fine to EUR 6,960,000 or by an amount considered appropriate by the Court of Justice in the exercise of its discretion; and

| — | take any other measure that the Court of Justice deems appropriate. |
| --- | --- |

—

take any other measure that the Court of Justice deems appropriate.

Pleas in law and main arguments:

The Appellant submits that there is no indication that the Appellant's group or top management was involved in the cartel, no evidence that the Appellant engaged in the infringements calculatedly, deliberately and knowingly, and certainly no evidence that this was more so for the Appellant than for the other participants. There is therefore no justification for singling out the Appellant and imposing a special ‘deterrence factor’ on it.

If a fine otherwise calculated needs to be increased for deterrence on this ground, then the amount of the increase must be rationally based on the benefit which the company expected to obtain from the infringement. This increase can only be based on the company's turnover in the market affected by the infringement, adjusted for the probability or otherwise of detection.

The ‘size’ of the company or group in markets not affected by the infringement are not relevant to the expected benefits and incentives that a company might have to infringe the law, nor do they relate to risk of detection. Economic analysis confirms this. Conglomerate size and finances are therefore not relevant for the calculation of any increase which is needed for deterrence.

In other words, conglomerate size and finances cannot be a reason to single out the Appellant and increase the fine on it. Doing so is discriminatory, disproportionate, arbitrary, and not supported by adequate reasoning.

The Appellant therefore maintains that the Commission and the Court of First Instance were wrong to base the increase in the Appellant's fine for ‘deterrence’ on the Appellant's group turnover in products not affected by the infringement, without any finding that deterrence was necessary or identifying any rational basis for the amount of the increase.

---

(1)  OJ C 17, 19.1.2002, p. 15.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/1 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/1

---

Appeal brought on 15 July 2004 by SEC Corporation against the judgment delivered on 29 April 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 between Tokai Carbon Co. Ltd and others and the Commission of the European Communities.

(Case C-307/04 P)

(2004/C 239/02)

An appeal against the judgment delivered on 29 April 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 between Tokai Carbon Co. Ltd and others and the Commission of the European Communities, was brought before the Court of Justice of the European Communities on 15 July 2004 by SEC Corporation (case T-251/01 (1)), established in Amagasaki, Hyogo (Japan), represented by K. Platteau, lawyer.

The Appellant claims that the Court should:

| (a) | set aside in part the judgment under appeal in so far as it determines that the Commission was entitled to use worldwide product turnover as the differentiating factor when setting the basic amount of the fine imposed on the Appellant; |
| --- | --- |

(a)

set aside in part the judgment under appeal in so far as it determines that the Commission was entitled to use worldwide product turnover as the differentiating factor when setting the basic amount of the fine imposed on the Appellant;

| (b) | annul Article 3 of the Decision (2), as modified by the Court of First Instance, in so far as it imposes a fine of EUR 6.138 million on the Appellant, or, at least, substantially reduce this fine further to such amount the Court deems appropriate; and |
| --- | --- |

(b)

annul Article 3 of the Decision (2), as modified by the Court of First Instance, in so far as it imposes a fine of EUR 6.138 million on the Appellant, or, at least, substantially reduce this fine further to such amount the Court deems appropriate; and

| (c) | order the Commission to pay the costs incurred before the Court of First Instance and the Court of Justice. |
| --- | --- |

(c)

order the Commission to pay the costs incurred before the Court of First Instance and the Court of Justice.

Pleas in law and main arguments:

The Appellant submits that the judgment of the Court of First Instance should be set aside on the following grounds:

| 1) | Violation of Article 253 of the EC Treaty and the principles of non bis in idem and of fairness by holding that the Commission, in setting the fine imposed on SEC and in the context of the particular features of this case, is not obliged to take account of the sanctions previously imposed on SEC by the US competition authorities based on the same facts. |
| --- | --- |

1)

Violation of Article 253 of the EC Treaty and the principles of non bis in idem and of fairness by holding that the Commission, in setting the fine imposed on SEC and in the context of the particular features of this case, is not obliged to take account of the sanctions previously imposed on SEC by the US competition authorities based on the same facts.

| 2) | Violation of Article 253 of the EC Treaty and the principles of fairness and proportionality, by holding that the Commission is entitled to differentiate the basic amount of the fine of the parties involved on the basis of the worldwide product turnover only, with disregard to the scope of SEC's activities in the EEA. |
| --- | --- |

2)

Violation of Article 253 of the EC Treaty and the principles of fairness and proportionality, by holding that the Commission is entitled to differentiate the basic amount of the fine of the parties involved on the basis of the worldwide product turnover only, with disregard to the scope of SEC's activities in the EEA.

---

(1)  OJ C 31, 2.2.2002, p. 12.

(2)  Decision 2002/271/EC of 18 July 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement — Case COMP/E-1/36.490 — Graphite electrodes (OJ 2002, L 100, p. 1).

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/2 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/2

---

Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 20 April 2004 in the case of Fleisch-Winter GmbH & Co. KG against Hauptzollamt Hamburg-Jonas

(Case C-309/04)

(2004/C 239/03)

Reference has been made to the Court of Justice of the European Communities by order of the Bundesfinanzhof (Federal Finance Court, Germany) of 20 April 2004 received at the Court Registry on 21 July 2004, for a preliminary ruling in the case of Fleisch-Winter GmbH & Co. KG against Hauptzollamt Hamburg-Jonas (Hamburg-Jonas Principal Tax Office) on the following questions:

| 1. | Is the fact that on the basis of investigations carried out by customs authorities there is a suspicion that a product is subject to a ban under Community law which prohibits the export of a product eligible for a refund from a particular Member State to other Member States and to non-member countries sufficient of itself to exclude the existence of sound and fair marketable quality within the meaning of the first sentence of Article 13 of Regulation (EC) No 3665/87 (1) so that the actual condition or marketability of the particular product is irrelevant? |
| --- | --- |

1.

Is the fact that on the basis of investigations carried out by customs authorities there is a suspicion that a product is subject to a ban under Community law which prohibits the export of a product eligible for a refund from a particular Member State to other Member States and to non-member countries sufficient of itself to exclude the existence of sound and fair marketable quality within the meaning of the first sentence of Article 13 of Regulation (EC) No 3665/87 (1) so that the actual condition or marketability of the particular product is irrelevant?

| 2. | Is confirmation of sound and fair marketable quality within the meaning of the first sentence of Article 13 of Regulation (EC) No 3665/87, given in a national application for payment, information for the purposes of the second paragraph of Article 11(1) in conjunction with Article 3 of Regulation (EC) No 3665/97? |
| --- | --- |

2.

Is confirmation of sound and fair marketable quality within the meaning of the first sentence of Article 13 of Regulation (EC) No 3665/87, given in a national application for payment, information for the purposes of the second paragraph of Article 11(1) in conjunction with Article 3 of Regulation (EC) No 3665/97?

---

(1)  OJ L 351, p. 1.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/3 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/3

---

Reference for a preliminary ruling by the Gerechtshof te Amsterdam by decision of that court of 28 June 2004 in the case of B.V. Algemene Scheeps Agentuur Dordrecht against Inspecteur van de Belastingdienst – Douanedistrict Rotterdam

(Case C-311/04)

(2004/C 239/04)

Reference has been made to the Court of Justice of the European Communities by decision of the Gerechtshof te Amsterdam (Amsterdam Regional Court of Appeal, Netherlands) of 28 June 2004, received at the Court Registry on 22 July 2004, for a preliminary ruling in the case of B.V. Algemene Scheeps Agentuur Dordrecht against Inspecteur van de Belastingdienst – Douanedistrict Rotterdam on the following questions:

| 1. | Is Additional Note (EC) 1 to Chapter 10 of the Common Customs Tariff, as set out in Council Regulation (EEC) No 2658/87 (1) of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, valid in so far as it lays down requirements in respect of the term ‘semi-milled rice’ that differ from those laid down in the Customs Cooperation Council's Explanatory Note to subheading 1006 of the Harmonised System? |
| --- | --- |

1.

Is Additional Note (EC) 1 to Chapter 10 of the Common Customs Tariff, as set out in Council Regulation (EEC) No 2658/87 (1) of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, valid in so far as it lays down requirements in respect of the term ‘semi-milled rice’ that differ from those laid down in the Customs Cooperation Council's Explanatory Note to subheading 1006 of the Harmonised System?

| 2. | If the answer to the first question is in the affirmative, is it possible for an appellant to plead good faith pursuant to the fourth subparagraph of Article 220(2)(b) of the Community Customs Code in a situation where the appellant was or ought to have been aware of Additional Note (EC) 1(f) to Chapter 10 of the CN but did not know or may at least have had doubts as to whether that note was valid in the light of the different description set out in the Custom Cooperation Council's Explanatory Note to subheading 1006 of the Harmonised System? |
| --- | --- |

2.

If the answer to the first question is in the affirmative, is it possible for an appellant to plead good faith pursuant to the fourth subparagraph of Article 220(2)(b) of the Community Customs Code in a situation where the appellant was or ought to have been aware of Additional Note (EC) 1(f) to Chapter 10 of the CN but did not know or may at least have had doubts as to whether that note was valid in the light of the different description set out in the Custom Cooperation Council's Explanatory Note to subheading 1006 of the Harmonised System?

---

(1)  OJ L 256, 7.9.1987, p. 1.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/3 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/3

---

Reference for a preliminary ruling by the Verwaltungsgericht Frankfurt am Main by order of that court of 24 June 2004 in the case of Franz Egenberger GmbH Molkerei und Trockenwerk against Bundesanstalt für Landwirtschaft und Ernährung

(Case C-313/04)

(2004/C 239/05)

Reference has been made to the Court of Justice of the European Communities by order of the Verwaltungsgericht (Administrative Court), Frankfurt am Main of 24 June 2004, received at the Court Registry on 26 July 2004, for a preliminary ruling in the case of Franz Egenberger GmbH Molkerei und Trockenwerk against Bundesanstalt für Landwirtschaft und Ernährung on the following question:

| 1. | Is Article 35(2) of Commission Regulation (EC) No 2535/2001 contrary to higher-ranking Community law (1), in particular the prohibition in Article 28 EC of quantitative restrictions on imports and of measures having equivalent effect, the prohibition of discrimination in the second subparagraph of Article 34(2) EC and Article 26(2) of Council Regulation (EC) No 1255/1999 (2), and is it therefore invalid? |
| --- | --- |

1.

Is Article 35(2) of Commission Regulation (EC) No 2535/2001 contrary to higher-ranking Community law (1), in particular the prohibition in Article 28 EC of quantitative restrictions on imports and of measures having equivalent effect, the prohibition of discrimination in the second subparagraph of Article 34(2) EC and Article 26(2) of Council Regulation (EC) No 1255/1999 (2), and is it therefore invalid?

| 2. | Is Article 25(1) of Commission Regulation (EC) No 2535/2001 contrary to higher-ranking Community law, in particular the prohibition of discrimination in the second subparagraph of Article 34(2) EC, the prohibition of discrimination in the second subparagraph of Article 29(2) of Council Regulation (EC) No 1255/1999, Article 28 EC and the first paragraph of Article 82 EC, and is it therefore invalid? |
| --- | --- |

2.

Is Article 25(1) of Commission Regulation (EC) No 2535/2001 contrary to higher-ranking Community law, in particular the prohibition of discrimination in the second subparagraph of Article 34(2) EC, the prohibition of discrimination in the second subparagraph of Article 29(2) of Council Regulation (EC) No 1255/1999, Article 28 EC and the first paragraph of Article 82 EC, and is it therefore invalid?

| 3. | Are Articles 25(1) and 35(2) of Commission Regulation (EC) No 2535/2001 contrary to Article XVII: 1(a) of the General Agreement on Tariffs and Trade (GATT) and Article 1(3) of the Agreement on Import Licensing Procedures (3), and are they therefore invalid? |
| --- | --- |

3.

Are Articles 25(1) and 35(2) of Commission Regulation (EC) No 2535/2001 contrary to Article XVII: 1(a) of the General Agreement on Tariffs and Trade (GATT) and Article 1(3) of the Agreement on Import Licensing Procedures (3), and are they therefore invalid?

---

(1)  OJ L 341, p. 29.

(2)  OJ L 160, p. 48.

(3)  OJ L 336, de 23.12.1994, p. 151.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/3 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/3

---

Reference for a preliminary ruling by the College van Beroep voor het bedrijfsleven by order of that court of 22 July 2004 in the case of Stichting Zuid-Hollandse Milieufederatie against College voor de toelating van bestrijdingsmiddelen (Ctb)

(Case C-316/04)

(2004/C 239/06)

Reference has been made to the Court of Justice of the European Communities by order of the College van Beroep voor het bedrijfsleven of 22 July 2004, received at the Court Registry on 26 July 2004, for a preliminary ruling in the case of Stichting Zuid-Hollandse Milieufederatie against College voor de toelating van bestrijdingsmiddelen (Ctb) on the following questions:

| 1(a) | Can Article 8 of the Plant Protection Products Directive (1) be applied by the national court after the period referred to in Article 23 thereof has expired? |
| --- | --- |

1(a)

Can Article 8 of the Plant Protection Products Directive (1) be applied by the national court after the period referred to in Article 23 thereof has expired?

| 1(b) | Can Article 16 of the Biocidal Products Directive (2) be applied by a national court after the period referred to in Article 34 thereof has expired? |
| --- | --- |

1(b)

Can Article 16 of the Biocidal Products Directive (2) be applied by a national court after the period referred to in Article 34 thereof has expired?

| 2. | Must Article 16 of the Biocidal Product Directive be interpreted as having the same meaning as Article 8(2) of the Plant Protection Products Directive? |
| --- | --- |

2.

Must Article 16 of the Biocidal Product Directive be interpreted as having the same meaning as Article 8(2) of the Plant Protection Products Directive?

| 3. | Must Article 16(1) of the Biocidal Products Directive be interpreted as a standstill obligation?
  If the answer to this question is in the negative:
  Does Article 16(1) of the Biocidal Products Directive impose limits on amendments to national rules concerning the placing on the market of biocidal products, and if so what limits? |
| --- | --- |

3.

Must Article 16(1) of the Biocidal Products Directive be interpreted as a standstill obligation?

If the answer to this question is in the negative:

Does Article 16(1) of the Biocidal Products Directive impose limits on amendments to national rules concerning the placing on the market of biocidal products, and if so what limits?

| 4. | If the answer to Question 2 is in the negative:






  (a) | Must Article 8(2) of the Plant Protection Products Directive be interpreted as meaning that where a Member State authorises the placing on the market in its territory of plant protection products containing active substances not listed in Annex I to that directive that were already on the market two years after the date of notification of that directive regard must also be had to the provisions of Article 4 thereof? |
| --- | --- | --- |

4.

If the answer to Question 2 is in the negative:

(a)

Must Article 8(2) of the Plant Protection Products Directive be interpreted as meaning that where a Member State authorises the placing on the market in its territory of plant protection products containing active substances not listed in Annex I to that directive that were already on the market two years after the date of notification of that directive regard must also be had to the provisions of Article 4 thereof?

| (b) | Must Article 8(2) of the Plant Protection Products Directive also be interpreted as meaning that where a Member State authorises the placing on the market in its territory of plant protection products containing active substances not listed in Annex I to that directive that were already on the market two years after the date of notification of that directive regard must also be had to the provisions of Article 8(3) thereof? |
| --- | --- |

(b)

Must Article 8(2) of the Plant Protection Products Directive also be interpreted as meaning that where a Member State authorises the placing on the market in its territory of plant protection products containing active substances not listed in Annex I to that directive that were already on the market two years after the date of notification of that directive regard must also be had to the provisions of Article 8(3) thereof?

| 5. | Must Article 8(3) of the Plant Protection Products Directive be interpreted as meaning that 'a review' must also be construed as including an examination whereby regard is to be had to the effects of an active substance concerned on human and animal health and on the environment and on the basis of which this active substance is designated, the result of such designation being that plant protection products containing the active substance are authorised or registered by operation of law? |
| --- | --- |

5.

Must Article 8(3) of the Plant Protection Products Directive be interpreted as meaning that 'a review' must also be construed as including an examination whereby regard is to be had to the effects of an active substance concerned on human and animal health and on the environment and on the basis of which this active substance is designated, the result of such designation being that plant protection products containing the active substance are authorised or registered by operation of law?

| 6. | Must Article 8(3) of the Plant Protection Products Directive be interpreted as meaning that it contains only rules relating to the provision of data before a review or must it be construed as meaning that the requirements set out therein are also relevant to the way in which a review must be organised and carried out? |
| --- | --- |

6.

Must Article 8(3) of the Plant Protection Products Directive be interpreted as meaning that it contains only rules relating to the provision of data before a review or must it be construed as meaning that the requirements set out therein are also relevant to the way in which a review must be organised and carried out?

---

(1)   OJ L 230, 19.8.1991, p. 1.

(2)   OJ L 123, 24.4.1998, p. 1.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/4 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/4

---

References for a preliminary ruling from the Cour d'Appel de Lyon by judgments of 24 February 2004, in the following cases SAS Distribution Casino France, as successor to Casino France, against Organic de recouvrement (Caisse Nationale de l'Organisation Autonome d'Assurance Vieillesse des Travailleurs Non-Salariés des Professions Industrielles et Commerciales), Casino France, as successor to SA Imquef, in turn successor to SA Judis, against Organic de recouvrement (Caisse Nationale de l'Organisation Autonome d'Assurance Vieillesse des Travailleurs Non-Salariés des Professions Industrielles et Commerciales), SA Dechrist Holding against Organic de recouvrement (Caisse Nationale de l'Organisation Autonome d'Assurance Vieillesse des Travailleurs Non-Salariés des Professions Industrielles et Commerciales), SA Komogo against Organic de recouvrement (Caisse Nationale de l'Organisation Autonome d'Assurance Vieillesse des Travailleurs Non-Salariés des Professions Industrielles et Commerciales), SARL Tout pour la maison against Organic de recouvrement (Caisse Nationale de l'Organisation Autonome d'Assurance Vieillesse des Travailleurs Non-Salariés des Professions Industrielles et Commerciales)

(Cases C-321/04, C-322/04, C-323/04, C-324/04, C-325/04)

(2004/C 239/07)

Reference has been made to the Court of Justice of the European Communities by judgments of the Cour d'Appel de Lyon (Lyons Court of Appeal) given on 24 February 2004 in the following cases:

SAS Distribution Casino France, as successor to Casino France, against Organic de recouvrement (Caisse Nationale de l'Organisation Autonome d'Assurance Vieillesse des Travailleurs Non-Salariés des Professions Industrielles et Commerciales) (National Independent Old-Age Insurance Fund for Self-Employed Persons in Manufacturing and Trading Occupations) (Case C-321/04)

Casino France, as successor to SA Imquef, in turn successor to SA Judis, against Organic de recouvrement (Caisse Nationale de l'Organisation Autonome d'Assurance Vieillesse des Travailleurs Non-Salariés des Professions Industrielles et Commerciales) (National Independent Old-Age Insurance Fund for Self-Employed Persons in Manufacturing and Trading Occupations) (Case C-322/04)

SA Dechrist Holding against Organic de recouvrement (Caisse Nationale de l'Organisation Autonome d'Assurance Vieillesse des Travailleurs Non-Salariés des Professions Industrielles et Commerciales) (National Independent Old-Age Insurance Fund for Self-Employed Persons in Manufacturing and Trading Occupations) (Case C-323/04)

SA Komogo against Organic de recouvrement (Caisse Nationale de l'Organisation Autonome d'Assurance Vieillesse des Travailleurs Non-Salariés des Professions Industrielles et Commerciales) (National Independent Old-Age Insurance Fund for Self-Employed Persons in Manufacturing and Trading Occupations) (Case C-324/04)

SARL Tout pour la maison against Organic de recouvrement (Caisse Nationale de l'Organisation Autonome d'Assurance Vieillesse des Travailleurs Non-Salariés des Professions Industrielles et Commerciales) (National Independent Old-Age Insurance Fund for Self-Employed Persons in Manufacturing and Trading Occupations) (Case C-325/04), received at the Court Registry on 27 July 2004.

The Cour d'Appel de Lyon asks the Court of Justice to decide whether a mutual assistance charge for the benefit of traders and craftsmen collected from the appellants is State aid within the meaning of Article 87 of the EC Treaty (formerly Article 92).

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/5 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/5

---

Reference for a preliminary ruling by the Consiglio di Stato, in sede giurisdizionale (Sesta Sezione), by order of that court of 6 April 2004 in the case of A.T.I. E.A.C. srl and VIAGGI DI MAIO SNC against A.C.T.V. Venezia spa

(Case C-331/04)

(2004/C 239/08)

Reference has been made to the Court of Justice of the European Communities by order of the Consiglio di Stato, in sede giurisdizionale, Sesta Sezione (Council of State, Judicial Division, Sixth Chamber), of 6 April 2004, received at the Court Registry on 29 August 2004, for a preliminary ruling in the case of A.T.I. E.A.C. srl and VIAGGI DI MAIO SNC against A.C.T.V. Venezia spa on the following questions:

‘Is it lawful to interpret those provisions as flexible rules allowing the contracting authority, where the award is to be made on the basis of the economically most advantageous tender, to fix the criteria in a general way in the tender notice or the contract documents, leaving it to the jury to specify or supplement those criteria, if need be, provided always that such specifying or supplementing is carried out before the packets containing the tenders have been opened and that such action introduces nothing new in relation to the criteria fixed in the tender notice or, on the contrary, must that provision be interpreted as a rigid rule requiring the contracting authority to determine, analytically, the criteria for the award of the contract in the tender notice or the contract documents, and in any case before the prequalification stage or the invitation to tender, and as meaning that the jury may not subsequently in any way do anything to specify or supplement those criteria or to creating subheadings or sub-marking, since for reasons of transparency every piece of information concerning the criteria for the award must appear in the notice or contract documents.

In short, is the traditional line of interpretation followed in the past in the Consiglio di Stato's case-law, which permits the jury to take action to supplement the criteria, lawful in the light of Community law?

Is it lawful, in the light of that provision loosely interpreted having regard to the adverbial phrase “where possible”, for the contracting authority to adopt conditions for participation that provide, with regard to one of the criteria for the award (in this instance, the organisational and support procedures), with reference to a complex series of criteria for which the tender notice did not allocate individual points, so that they were in that sense in part indeterminate, that the points should be allocated at the absolute discretion of the contracting authority, or does not that provision in any case require that the criteria should as a general rule be formulated absolutely definitively, which is not compatible with the fact that those criteria were not allocated separate points in the notice; if it is lawful, because the provision is considered to be flexible and because it is not essential to give points to every item, is it permissible, where the tender notice does not give express power to the jury, for the latter to specify or supplement the criteria (simply by allocating individual importance and relative weight to every single item that the notice intended to be assessed by the overall allocation of a maximum of 25 points ), or is it not on the contrary necessary to apply the conditions of the tender literally, allocating the points on an overall assessment of the various and complex matters taken into consideration by the lex specialis?

In any case, is it lawful, in the light of that provision, to give the jury which is to assess the tenders, regardless of the manner in which criteria have been formulated in the tender notice, in a procedure for an award on the basis of the economically most advantageous tender, the power, but only in respect of the complexity of the matters to be assessed, to restrict its own actions in a general way, by specifying the parameters for the application of the criteria previously determined in the tender notice, and may such power held by the jury be exercised by creating subheadings, sub-points, or simply by setting more specific criteria for the application of the criteria laid down generally in the notice or the contract documents, before of course the envelopes have been opened?’

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/5 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/5

---

Action brought on 15 June 2004 by the Commission of the European Communities against the Hellenic Republic

(Case C-256/04)

(2004/C 239/09)

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 15 June 2004 by the Commission of the European Communities, represented by Arnaud Bordes and Minas Konstantinidis, of its Legal Service.

The Commission claims that the Court should:

| 1) | declare that, by failing to adopt, and in any event to notify to the Commission, the laws, regulations and administrative provisions necessary to comply with Council Directive 2001/89/EC (1) of 23 October 2001 on Community measures for the control of classical swine fever, the Hellenic Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

1)

declare that, by failing to adopt, and in any event to notify to the Commission, the laws, regulations and administrative provisions necessary to comply with Council Directive 2001/89/EC (1) of 23 October 2001 on Community measures for the control of classical swine fever, the Hellenic Republic has failed to fulfil its obligations under that directive;

| 2) | order the Hellenic Republic to pay the costs. |
| --- | --- |

2)

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The period for transposition of the directive into national law expired on 31 October 2002.

---

(1)  OJ L 316, 1.12.2001, p. 5.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/6 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/6

---

Action brought on 28 June 2004 by the Republic of Poland against the Council of the European Union

(Case C-273/04)

(2004/C 239/10)

An action against the Council of the European Union was brought before the Court of Justice of the European Communities on 28 June 2004 by the Republic of Poland, represented by Jarosław Pietras.

The Republic of Poland claims that the Court should:

| 1. | Declare invalid Article 1.5 of Council Decision 2004/281/EC of 22 March 2004 adapting the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, following the reform of the common agricultural policy (1); and |
| --- | --- |

1.

Declare invalid Article 1.5 of Council Decision 2004/281/EC of 22 March 2004 adapting the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, following the reform of the common agricultural policy (1); and

| 2. | — | conduct the proceedings in Polish, |
| --- | --- | --- |

2.

—

conduct the proceedings in Polish,

| — | determine the case in plenary formation, |
| --- | --- |

—

determine the case in plenary formation,

| — | order the Council of the European Union to pay the costs. |
| --- | --- |

—

order the Council of the European Union to pay the costs.

Pleas in law and main arguments:

The Government of the Republic of Poland takes the view that Article 23 of the Act of Accession, construed in accordance with the principles governing the interpretation of international agreements and Community law, does not provide any legal basis for adoption of the measures specified in Article 1.5 of Decision 2004/281/EC and based on the extension of the restricted scope of payments to the new direct payments.

The contested measure does not constitute an adjustment to the Act of Accession designed to take account of changes to the Common Agricultural Policy, but amounts rather to a fundamental alteration of the conditions of accession defined in that Act that is detrimental to the Republic of Poland and to agricultural producers operating within its territory. The contested measure is not a measure that is necessitated by reason of changes to the Community rules. Consequently, in the view of the Government of the Republic of Poland, the Council of the European Union did not have the power to extend the restricted scope of payments by way of a decision adopted pursuant to Article 23 of the Act of Accession. In introducing the contested measure, the Council of the European Union has infringed Article 23 of the Act of Accession.

The Government of the Republic of Poland submits further that the contested measure is contrary to the objective of the Accession Treaty of ensuring full assumption by the new Member States of the rights and duties deriving from membership of the European Union and infringes the principle of non-discrimination set out in Articles 12 EC and 34(2) EC, second subparagraph. The Accession Treaty was based on the principle that the new Member States should accede with equal rights, and thus in compliance with the fundamental principle of non-discrimination and equal treatment for producers from the Community of 15 States and for those from the new Member States. That fundamental principle has been limited only in the case of the listed instruments designed to support agricultural producers. The contested measure, by contrast, introduces a divergent principle that is discriminatory in character and under which all direct payments, both present and future, will be made on unequal bases resulting from the mechanism of gradual introduction. The contested measure accordingly results in departures from the principle of non-discrimination and equal treatment within an indeterminate and uncertain area.

The Government of the Republic of Poland also takes the view that, by basing itself as a rule on solutions which in the Accession Treaty were exceptional in nature, the contested measure undermines the negotiating compromise and constitutes an infringement of the principle of good faith. The Government of the Republic of Poland submits that, from the outset of the accession negotiations, it recognised the instrument of gradual introduction as being a solution exceptional in character, covering only the listed support instruments, but not as being a principle for supporting agricultural incomes within the territory of the Republic of Poland.

---

(1)  OJ L 93 of 30.3.2004, p. 1.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/7 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/7

---

Action brought on 27 July 2004 by the Commission of the European Communities against the Hellenic Republic

(Case C-326/04)

(2004/C 239/11)

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 27 July 2004 by the Commission of the European Communities, represented by D. Martin and E. Tserepa-Lacombe, members of the Commission's Legal Service.

The applicant claims that the Court should:

| 1) | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2000/43/EC of 29 June 2000 (1) implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, or in any event by failing to inform the Commission of such measures, the Hellenic 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 Council Directive 2000/43/EC of 29 June 2000 (1) implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, or in any event by failing to inform the Commission of such measures, the Hellenic Republic has failed to fulfil its obligations under that directive;

| 2) | order the Hellenic Republic to pay the costs. |
| --- | --- |

2)

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The time-limit for implementing the directive in national law expired on 19 July 2003.

---

(1)  OJ L 180 of 19.7.2000, p. 22.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/7 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/7

---

Action brought on 27 July 2004 by the Commission of the European Communities against the Republic of Finland

(Case C-327/04)

(2004/C 239/12)

An action against the Republic of Finland was brought before the Court of Justice of the European Communities on 27 July 2004 by the Commission of the European Communities, represented by M. Huttunen and D. Martin, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

| 1. | Declare that, by failing to bring into force the laws, regulations and administrative provisions necessary to comply, with respect to the province of Åland (Ahvenanmaan maakunta), with Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (1), or at least by not informing the Commission thereof, 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 respect to the province of Åland (Ahvenanmaan maakunta), with Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (1), or at least by not informing the Commission thereof, 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 prescribed period for implementing the directive expired on 19 July 2003.

---

(1)  OJ L 180 of 19.7.2000, p. 22.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/7 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/7

---

Action brought on 29 July 2004 by the Commission of the European Communities against the Federal Republic of Germany

(Case C-329/04)

(2004/C 239/13)

An action against the Federal Republic of Germany was brought before the Court of Justice of the European Communities on 29 July 2004 by the Commission of the European Communities, represented by Denis Martin, of its legal service and Horstpeter Kreppel, Judge of the Arbeitsgericht (Labour Court) seconded to the Commission's legal service as part of an exchange programme with national civil servants, with an address for service in Luxembourg.

The applicant claims that the Court should:

| 1. | declare that, by failing to adopt the laws, regulations and administrative provisions necessary fully to comply with Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (1), or to notify the Commission of any such provisions, the Federal Republic of Germany has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that, by failing to adopt the laws, regulations and administrative provisions necessary fully to comply with Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (1), or to notify the Commission of any such provisions, the Federal Republic of Germany has failed to fulfil its obligations under that directive;

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

2.

order the Federal Republic of Germany to pay the costs of the proceedings.

Pleas in law and main arguments:

The period for transposition of Directive 2000/43/EC expired on 19 July 2003.

---

(1)  OJ L 180, 19.7.2000, p. 22.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/8 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/8

---

Action brought on 30 July 2004 by the Commission of the European Communities against the Hellenic Republic

(Case C-334/04)

(2004/C 239/14)

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 30 July 2004 by the Commission of the European Communities, represented by Maria Patakia and Michel van Beek, of its Legal Service.

The Commission claims that the Court should declare that:

| | by classifying as special protection areas (SPAs) territories the number and overall size of which fall clearly short of the number and overall size of territories fulfilling the preconditions for classification as special protection areas within the meaning of Article 4 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, |
| --- | --- |

by classifying as special protection areas (SPAs) territories the number and overall size of which fall clearly short of the number and overall size of territories fulfilling the preconditions for classification as special protection areas within the meaning of Article 4 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds,

| | by designating SPAs of a size clearly smaller than the corresponding IBA 2000 territories which fulfil the preconditions for classification as SPAs, |
| --- | --- |

by designating SPAs of a size clearly smaller than the corresponding IBA 2000 territories which fulfil the preconditions for classification as SPAs,

| | by failing to designate SPAs for many species of birds included in Annex I to Directive 79/409 or by having classified as SPAs areas where the species in question are insufficiently represented, |
| --- | --- |

by failing to designate SPAs for many species of birds included in Annex I to Directive 79/409 or by having classified as SPAs areas where the species in question are insufficiently represented,

| | by failing to designate SPAs for many migratory species or by having classified as SPAs areas where the species at issue are insufficiently represented, |
| --- | --- |

by failing to designate SPAs for many migratory species or by having classified as SPAs areas where the species at issue are insufficiently represented,

the Hellenic Republic has failed to fulfil its obligations under Article 4(1) and (2) of Directive 79/409.

Pleas in law and main arguments

In accordance with settled case-law of the Court of Justice, Article 4(1) and (2) of Directive 79/409 requires the Member States to lay down a special regime for SPAs that ensures, principally, the survival and reproduction of the species mentioned in Annex I to that directive.

In accordance with the case-law, but also in the Commission's submission, the IBA (Important Bird Areas) inventory is considered to be an authoritative scientific basis of reference.

In accordance with that inventory, 186 areas in Greece must be classified as SPAs.

By the date on which the application was lodged Greece had designated only 151 SPAs, and they are smaller in extent than envisaged by the IBA 2000 inventory.

The Commission concludes therefrom that those SPAs have not been designated on the basis of ornithological criteria as required by Article 4 of the directive.

Greek national territory is of great ornithological importance for many of the species of wild birds mentioned in Annex I to the directive, including species under threat worldwide. Those species are not sufficiently covered by the existing SPAs in Greece.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/8 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/8

---

Action brought on 30 July 2004 by the Commission of the European Communities against the Republic of Austria

(Case C-335/04)

(2004/C 239/15)

An action against the Republic of Austria was brought before the Court of Justice of the European Communities on 30 July 2004 by the Commission of the European Communities, represented by Denis Martin, of its legal service and Horstpeter Kreppel, Judge of the Arbeitsgericht (Labour Court) seconded to the Commission's legal service as part of an exchange programme with national civil servants, with an address for service in Luxembourg.

The applicant claims that the Court should:

| 1. | declare that, by failing to adopt the laws, regulations and administrative provisions necessary fully to comply with Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (1), or to notify the Commission of any such provisions, the Republic of Austria has failed to fulfil its obligations under that directive; |
| --- | --- |

1.

declare that, by failing to adopt the laws, regulations and administrative provisions necessary fully to comply with Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (1), or to notify the Commission of any such provisions, the Republic of Austria has failed to fulfil its obligations under that directive;

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

2.

order the Republic of Austria to pay the costs of the proceedings.

Pleas in law and main arguments:

The period for transposition of Directive 2000/43/EC expired on 19 July 2003.

---

(1)  OJ L 180, 19.7.2000, p. 22.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/9 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/9

---

Action brought on 2 August 2004 by the Commission of the European Communities against the French Republic

(Case C-337/04)

(2004/C 239/16)

An action against the French Republic was brought before the Court of Justice of the European Communities on 2 August 2004 by the Commission of the European Communities, represented by Gérard Rozet and Christophe Giolito, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

| 1. | declare that, by failing to enforce, within the period prescribed, the decision of 15 January 2002 concerning the State aid carried out by the French Republic in favour of Crédit Mutuel (State Aid C 88/1997 ex NN 183/1995; since published in OJ L 88, 4.4.2003, p. 39), the French Republic has failed to fulfil its obligations under the fourth subparagraph of Article 249 EC and Articles 2 and 3 of that decision; |
| --- | --- |

1.

declare that, by failing to enforce, within the period prescribed, the decision of 15 January 2002 concerning the State aid carried out by the French Republic in favour of Crédit Mutuel (State Aid C 88/1997 ex NN 183/1995; since published in OJ L 88, 4.4.2003, p. 39), the French Republic has failed to fulfil its obligations under the fourth subparagraph of Article 249 EC and Articles 2 and 3 of that decision;

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

2.

order the French Republic to pay the costs.

Pleas in law and main arguments

Considering that the attribution by the French public authorities in favour of Crédit Mutuel of the distribution right to the ‘Livret bleu’ savings scheme involved State aid incompatible with the common market, on 15 January 2002 the Commission adopted, under the first subparagraph of Article 88(2) EC, a decision requiring France to recover from Crédit Mutuel the aid granted since 1 January 1991 and to take measures to withdraw in future aid included in the ‘Livret bleu’ scheme and to improve supervision of it.

On 18 June 2003 the French authorities sent a recovery order for EUR 117,9 million to Crédit Mutuel. However, the Commission notes that to date no amount of the aid has been reimbursed by Crédit Mutuel and no further action has been taken by France to recover that aid. In the Commission's view, therefore, France has not complied with the decision and since it has not alleged that compliance with the decision was absolutely impossible, which is the only defence available to it, it must be found that it failed to fulfil its obligations under Community law.

Furthermore, the Commission does not agree regarding the simple interest method used by the French authorities to calculate interest to be paid on the amount to be recovered, nor regarding the amount of tax deducted from the amount to be recovered. It considers that only capitalisation of interest by the compound interest method will result in the neutralisation of the economic advantage from which Crédit Mutuel has benefited. Furthermore, the French authorities have not shown that the deduction of the tax from the amount to be recovered was made by application of the internal rules and in a non-discriminatory manner in comparison with similar cases governed by national law. Consequently, the amount to be recovered proposed by the French authorities does not permit the Commission decision to be implemented effectively.

Finally, the Commission considers that France has not complied with Articles 2(2), 2(3) and 2(4) of the decision of 15 January 2002, intended to ensure the withdrawal of the elements of aid involved in the ‘Livret bleu’ scheme and the better supervision of the scheme, but has merely stated that the necessary measures were being taken. The Commission has to date nothing in its possession which might lead it to conclude that the decision has been implemented effectively on those points.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/9 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/9

---

Action brought on 13 August 2004 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-349/04)

(2004/C 239/17)

An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 13 August 2004 by the Commission of the European Communities, represented by E. Gippini Fournier and K. Mojzesowicz, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

| 1. | Declare that, by failing to supply the Commission with all the information necessary to allow it to confirm that the provisions of Directive 2002/77/EC (1) have been complied with, Luxembourg has failed to fulfil its obligations under Article 9 of that directive; |
| --- | --- |

1.

Declare that, by failing to supply the Commission with all the information necessary to allow it to confirm that the provisions of Directive 2002/77/EC (1) have been complied with, Luxembourg has failed to fulfil its obligations under Article 9 of that directive;

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

2.

Order Luxembourg to pay the costs.

Pleas in law and main arguments

Article 9 of Directive 2002/77/EC requires the Member States to supply the Commission, no later than 24 July 2003, with information allowing it to confirm that the provisions of that directive have been complied with.

---

(1)  Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (OJ 2002 L 249, p. 21).

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/10 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/10

---

Removal from the register of Case C-401/02 (1)

(2004/C 239/18)

By order of 2 June 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-401/02: Commission of the European Communities v Federal Republic of Germany.

---

(1)  OJ C 19, 25.1.2003.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/10 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/10

---

Removal from the register of Case C-322/03 (1)

(2004/C 239/19)

By order of 17 May 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-322/03: Commission of the European Commission v Ireland.

---

(1)  OJ C 213, 6.9.2003.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/10 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/10

---

Removal from the register of Case C-418/03 (1)

(2004/C 239/20)

By order of 13 July 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-418/03: Commission of the European Communities v Grand Duchy of Luxembourg.

---

(1)  OJ C 275, 15.11.2003.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/10 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/10

---

Removal from the register of Case C-534/03 (1)

(2004/C 239/21)

By order of 11 June 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-534/03: Commission of the European Communities v Kingdom of Belgium.

---

(1)  OJ C 59, 6.3.2004.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/10 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/10

---

Removal from the register of Case C-76/04 (1)

(2004/C 239/22)

By order of 11 June 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-76/04: Commission of the European Communities v Kingdom of the Netherlands.

---

(1)  OJ C 94, 17.4.2004.

---

COURT OF JUSTICE AND COURT OF FIRST INSTANCE

| 25.9.2004 | EN | Official Journal of the European Union | C 239/11 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/11

---

By orders of 8 June 2004, the Court of Justice of the European Communities, pursuant to Article 2 of Council Decision 2004/407/EC, Euratom of 26 April 2004 amending Articles 51 and 54 of the Protocol on the Statute of the Court of Justice, (1) referred the cases listed in the left-hand column of the table below to the Court of First Instance.

(2004/C 239/23)

The cases have been registered at the Court of First Instance under the numbers shown in the right-hand column below.

| Number of case referred by the Court of Justice | Names of the parties | Notice of registration of the case published in the Official Journal | Number of registration at the Court of First Instance |
| --- | --- | --- | --- |
| OJ | of |
| C-197/01 | Netherlands v Commission | C 227 | 11.8.2001 | T-216/04 |
| C-325/01 | Netherlands v Commission | C 303 | 27.10.2001 | T-217/04 |
| C-368/01 | Netherlands v Commission | C 331 | 24.11.2001 | T-218/04 |
| C-407/01 | Netherlands v Commission | C 369 | 22.12.2001 | T-227/04 |
| C-290/02 | Italy v Commission | C 233 | 28.9.2002 | T-222/04 |
| C-314/02 | Netherlands v Commission | C 247 | 12.10.2002 | T-228/04 |
| C-280/03 | Commission v Lior and Others | C 213 | 6.9.2003 | T-245/04 |
| C-388/03 | Netherlands/Commission | C 275 | 15.11.2003 | T-233/04 |
| C-401/03 | Italy v Commission | C 304 | 13.12.2003 | T-223/04 |
| C-430/03 | Italy v Commission | C 304 | 13.12.2003 | T-224/04 |
| C-455/03 | France v Commission | C 304 | 13.12.2003 | T-240/04 |
| C-464/03 | Spain v Commission | C 7 | 10.1.2004 | T-219/04 |
| C-492/03 | Austria v Commission | C 21 | 24.1.2004 | T-235/04 |
| C-60/04 | Italy v Commission | C 106 | 30.4.2004 | T-225/04 |
| C-102/04 | Sweden v Commission | C 106 | 30.4.2004 | T-229/04 |
| C-103/04 | Netherlands v Commission | C 94 | 17.4.2004 | T-234/04 |
| C-162/04 | Finland v Commission | C 146 | 29.5.2004 | T-230/04 |
| C-175/04 | Spain v Commission | C 146 | 29.5.2004 | T-220/04 |
| C-176/04 | Belgium v Commission | C 118 | 30.4.2004 | T-221/04 |
| C-189/04 | Greece v Commission | C 179 | 10.7.2004 | T-231/04 |
| C-211/04 | Italy v Commission | C 179 | 10.7.2004 | T-226/04 |
| C-218/04 | Greece v Commission | C 179 | 10.7.2004 | T-232/04 |

Number of case referred by the Court of Justice

Names of the parties

Notice of registration of the case published in the Official Journal

Number of registration at the Court of First Instance

OJ

of

C-197/01

Netherlands v Commission

C 227

11.8.2001

T-216/04

C-325/01

Netherlands v Commission

C 303

27.10.2001

T-217/04

C-368/01

Netherlands v Commission

C 331

24.11.2001

T-218/04

C-407/01

Netherlands v Commission

C 369

22.12.2001

T-227/04

C-290/02

Italy v Commission

C 233

28.9.2002

T-222/04

C-314/02

Netherlands v Commission

C 247

12.10.2002

T-228/04

C-280/03

Commission v Lior and Others

C 213

6.9.2003

T-245/04

C-388/03

Netherlands/Commission

C 275

15.11.2003

T-233/04

C-401/03

Italy v Commission

C 304

13.12.2003

T-223/04

C-430/03

Italy v Commission

C 304

13.12.2003

T-224/04

C-455/03

France v Commission

C 304

13.12.2003

T-240/04

C-464/03

Spain v Commission

C 7

10.1.2004

T-219/04

C-492/03

Austria v Commission

C 21

24.1.2004

T-235/04

C-60/04

Italy v Commission

C 106

30.4.2004

T-225/04

C-102/04

Sweden v Commission

C 106

30.4.2004

T-229/04

C-103/04

Netherlands v Commission

C 94

17.4.2004

T-234/04

C-162/04

Finland v Commission

C 146

29.5.2004

T-230/04

C-175/04

Spain v Commission

C 146

29.5.2004

T-220/04

C-176/04

Belgium v Commission

C 118

30.4.2004

T-221/04

C-189/04

Greece v Commission

C 179

10.7.2004

T-231/04

C-211/04

Italy v Commission

C 179

10.7.2004

T-226/04

C-218/04

Greece v Commission

C 179

10.7.2004

T-232/04

---

(1)  OJ L 132 of 29.4.2004.

---

COURT OF FIRST INSTANCE

| 25.9.2004 | EN | Official Journal of the European Union | C 239/12 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/12

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 8 July 2004

in Case T-44/00: Mannesmannröhren-Werke v Commission of the European Communities (1)

(Competition - Cartels - Markets in seamless steel tubes - Duration of the infringement - Fines)

(2004/C 239/24)

Language of the case: German

In Case T-44/00: Mannesmannröhren-Werke AG, established in Mülheim an der Ruhr (Germany), represented by M. Klusmann, lawyer, with an address for service in Luxembourg, against the Commission of the European Communities (Agents: M. Erhart and A. Whelan, with an address for service in Luxembourg) — application for annulment of Commission Decision 2003/382/EC of 8 December 1999 relating to a proceeding under Article 81 of the EC Treaty (Case IV/E-1/35.860-B seamless steel tubes) (OJ 2003, L 140, p. 1), or, alternatively, a reduction in the amount of the fine imposed on the applicant — the Court of First Instance (Second Chamber), composed of N.J. Forwood, President, J. Pirrung and A.W.H. Meij, Judges; J. Plingers, Administrator, for the Registrar, gave a judgment on 8 July 2004, in which it:

| 1. | Annuls Article 1(2) of Commission Decision 2003/382/EC of 8 December 1999 relating to a proceeding under Article 81 of the EC Treaty (Case IV/E-1/35.860-B seamless steel tubes) in so far as it finds that the infringement imputed to the applicant by that provision existed before 1 January 1991; |
| --- | --- |

1.

Annuls Article 1(2) of Commission Decision 2003/382/EC of 8 December 1999 relating to a proceeding under Article 81 of the EC Treaty (Case IV/E-1/35.860-B seamless steel tubes) in so far as it finds that the infringement imputed to the applicant by that provision existed before 1 January 1991;

| 2. | Sets the amount of the fine imposed on the applicant in Article 4 of Decision 2003/382 at EUR 12,600,000; |
| --- | --- |

2.

Sets the amount of the fine imposed on the applicant in Article 4 of Decision 2003/382 at EUR 12,600,000;

| 3. | Dismisses the remainder of the application; |
| --- | --- |

3.

Dismisses the remainder of the application;

| 4. | Orders the applicant and the Commission to bear their own costs. |
| --- | --- |

4.

Orders the applicant and the Commission to bear their own costs.

---

(1)  OJ C 135 of 13.5.2000.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/12 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/12

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 8 July 2004

in Case T-48/00: Corus UK Ltd v Commission of the European Communities (1)

(Competition - Agreements - Seamless steel tubes market - Duration of the infringement - Fines)

(2004/C 239/25)

Language of the case: English

In Case T-48/00: Corus UK Ltd, formerly British Steel plc, established in London (United Kingdom), represented by J. Pheasant and M. Readings, solicitors, with an address for service in Luxembourg, against Commission of the European Communities (Agents: initially M. Erhart and B. Doherty, then M. Erhart and A. Whelan) — application for the annulment of Commission Decision 2003/382/EC of 8 December 1999 relating to a proceeding under Article 81 of the EC Treaty (Case IV/E-1/35.860-B seamless steel tubes) (OJ 2003 L 140, p. 1), or, alternatively, a reduction in the amount of the fine imposed on the applicant — the Court of First Instance (Second Chamber), composed of N.J. Forwood, President, J. Pirrung and A.W.H. Meij, Judges; J. Plingers, Administrator, for the Registrar, gave a judgment on 8 July 2004, in which it:

| 1. | Annuls Article 1(2) of Commission Decision 2003/382/EC of 8 December 1999 relating to a proceeding under Article 81 of the EC Treaty (Case IV/E-1/35.860-B seamless steel tubes) in so far as it establishes the existence of the infringement found in that article against the applicant as pre-dating 1 January 1991; |
| --- | --- |

1.

Annuls Article 1(2) of Commission Decision 2003/382/EC of 8 December 1999 relating to a proceeding under Article 81 of the EC Treaty (Case IV/E-1/35.860-B seamless steel tubes) in so far as it establishes the existence of the infringement found in that article against the applicant as pre-dating 1 January 1991;

| 2. | Sets the fine imposed on the applicant by Article 4 of Decision 2003/382 at EUR 11,700,000; |
| --- | --- |

2.

Sets the fine imposed on the applicant by Article 4 of Decision 2003/382 at EUR 11,700,000;

| 3. | Dismisses the remainder of the application; |
| --- | --- |

3.

Dismisses the remainder of the application;

| 4. | Orders the parties to bear their own costs. |
| --- | --- |

4.

Orders the parties to bear their own costs.

---

(1)  OJ C 135 of 13.5.2000.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/13 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/13

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 8 July 2004

in Case T-50/00: Dalmine SpA v Commission of the European Communities (1)

(Competition - Cartels - Markets for seamless steel pipes and tubes - Duration of the infringement - Fines)

(2004/C 239/26)

Language of the case: Italian

In Case T-50/00: Dalmine SpA, established in Dalmine (Italy), represented by M. Siragusa and F. Moretti, lawyers, with an address for service in Luxembourg, against Commission of the European Communities (Agents: M. Erhart and A. Whelan, assisted by A. Dal Ferro, lawyer, with an address for service in Luxembourg) — application for annulment of Commission Decision 2003/382/EC of 8 December 1999 relating to a procedure under Article 81 of the EC Treaty (Case IV/E-1/35.860-B — Seamless steel tubes) (OJ 2003 L 140, p. 1) or, alternatively, for a reduction in the amount of the fine imposed on the applicant — the Court of First Instance (Second Chamber), composed of N.J. Forwood, President, J. Pirrung and A.W.H. Meij, Judges; J. Plingers, Administrator, for the Registrar, gave a judgment on 8 July 2004, in which it:

| 1. | Annuls Article 1(2) of Commission Decision 2003/382/EC of 8 December 1999 relating to a proceeding under Article 81 EC (Case IV/E–1/35.860-B Seamless steel tubes) in so far as it finds that the infringement imputed to the applicant by that provision existed before 1 January 1991; |
| --- | --- |

1.

Annuls Article 1(2) of Commission Decision 2003/382/EC of 8 December 1999 relating to a proceeding under Article 81 EC (Case IV/E–1/35.860-B Seamless steel tubes) in so far as it finds that the infringement imputed to the applicant by that provision existed before 1 January 1991;

| 2. | Fixes the amount of the fine imposed on the applicant in Article 4 of Decision 2003/382 at EUR 10,080,000; |
| --- | --- |

2.

Fixes the amount of the fine imposed on the applicant in Article 4 of Decision 2003/382 at EUR 10,080,000;

| 3. | Dismisses the remainder of the application; |
| --- | --- |

3.

Dismisses the remainder of the application;

| 4. | Orders the applicant and the Commission to bear their own costs. |
| --- | --- |

4.

Orders the applicant and the Commission to bear their own costs.

---

(1)  OJ C 149 of 27.5.2000.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/13 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/13

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 8 July 2004

in Joined Cases T-67/00, T-68/00, T-7100 and T-78/00: JFE Engineering Corp and Others v Commission of the European Communities (1)

(Cartels - Market in seamless steel tubes and pipes - EFTA - Powers of the Commission - Infringement - Fines)

(2004/C 239/27)

Language of the case: English

In Joined Cases T-67/00, T-68/00, T-7100 and T-78/00: JFE Engineering Corp., formerly NKK Corp., established in Tokyo (Japan), represented initially by M. Smith and C. Maguire, solicitors, and subsequently by A. Vandencasteele and V. Dehin, lawyers, and A.-L. Marmagioli, solicitor, with an address for service in Luxembourg, Nippon Steel Corp., established in Tokyo, represented by J.-F. Bellis and K. Van Hove, lawyers, with an address for service in Luxembourg, JFE Steel Corp., formerly Kawasaki Steel Corp., established in Tokyo, represented by A. Vandencasteele, lawyer, with an address for service in Luxembourg, Sumitomo Metal Industries Ltd, established in Tokyo, represented by C. Vajda QC, G. Sproul and F. Weitzman, solicitors, with an address for service in Luxembourg, against Commission of the European Communities (Agents: M. Erhart and A. Whelan assisted by N. Khan, barrister, with an address for service in Luxembourg), supported by EFTA Surveillance Authority (Agents: D. Sif Tynes and P Bjørgan — application for the annulment of Commission Decision 2003/382/EC of 8 December 1999 relating to a proceeding under Article 81 of the EC Treaty (Case IV/E-1/35.860-B seamless steel tubes) (OJ 2003 L 140, p. 1) or, in the alternative, for reduction of the fines imposed on the applicants, — the Court of First Instance (Second Chamber), composed of N.J. Forwood, President, J. Pirrung and A.W.H. Meij, Judges; J. Plingers, Administrator, for the Registrar, gave a judgment on 8 July 2004, in which it:

| 1. | Annuls Article 1(2) of Commission Decision 2003/382/EC of 8 December 1999 relating to a proceeding under Article 81 of the EC Treaty (Case IV/E-1/35.860-B seamless steel tubes) in so far as it establishes the existence of the infringement found in that article against the four applicants in Cases T-67/00, T-68/00, T-71/00 and T-78/00 as pre-dating 1 January 1991 and extending beyond 30 June 1994; |
| --- | --- |

1.

Annuls Article 1(2) of Commission Decision 2003/382/EC of 8 December 1999 relating to a proceeding under Article 81 of the EC Treaty (Case IV/E-1/35.860-B seamless steel tubes) in so far as it establishes the existence of the infringement found in that article against the four applicants in Cases T-67/00, T-68/00, T-71/00 and T-78/00 as pre-dating 1 January 1991 and extending beyond 30 June 1994;

| 2. | Sets the fine imposed on each of the four applicants by Article 4 of Decision 2003/382 at EUR 10,935,000; |
| --- | --- |

2.

Sets the fine imposed on each of the four applicants by Article 4 of Decision 2003/382 at EUR 10,935,000;

| 3. | Dismisses the remainder of the four applications; |
| --- | --- |

3.

Dismisses the remainder of the four applications;

| 4. | Orders the four applicants and the Commission to bear their own costs; |
| --- | --- |

4.

Orders the four applicants and the Commission to bear their own costs;

| 5. | Orders the EFTA Surveillance Authority to bear its own costs. |
| --- | --- |

5.

Orders the EFTA Surveillance Authority to bear its own costs.

---

(1)  OJ C 149 of 27.5.2000.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/14 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/14

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 1 July 2004

in Case T-308/00: Salzgitter AG v Commission of the European Communities (1)

(State aid - Article 4(c) CS, Articles 67 CS and 95 CS - Financial intervention in favour of the undertaking Salzgitter - Border between the former German Democratic Republic and former Czechoslovak Socialist Republic - Non-notified aid - Sixth Steel Aid Code - Legal certainty)

(2004/C 239/28)

Language of the case: German

In Case T-308/00: Salzgitter AG, established in Salzgitter (Germany), represented by J. Sedemund and T. Lübbig, lawyers, with an address for service in Luxembourg, supported by the Federal Republic of Germany, (Agent: W.-D. Plessing, assisted by K. Schroeter, lawyer) against the Commission of the European Communities (Agents: K.-D. Borchardt and V. Kreuschitz) — application for an annulment of Commission Decision 2000/797/ECSC of 28 June 2000 on State aid granted by the Federal Republic of Germany to Salzgitter AG, Preussag Stahl AG and the group's steel-industry subsidiaries, now known as Salzgitter AG – Stahl und Technologie (SAG) (OJ 2000 L 323, p. 5) — the Court of First Instance (Fourth Chamber, Extended Composition), composed of V. Tiili, President, J. Pirrung, P. Mengozzi, A.W.H. Meij and M. Vilaras, Judges; Registrar: I. Natsinas, Administrator, has given a judgment on 1 July 2004, in which it:

| 1. | Annuls Articles 2 and 3 of Commission Decision 2000/797/ECSC of 28 June 2000 on State aid granted by the Federal Republic of Germany to Salzgitter AG, Preussag Stahl AG and the group's steel-industry subsidiaries, now known as Salzgitter AG – Stahl und Technologie (SAG); |
| --- | --- |

1.

Annuls Articles 2 and 3 of Commission Decision 2000/797/ECSC of 28 June 2000 on State aid granted by the Federal Republic of Germany to Salzgitter AG, Preussag Stahl AG and the group's steel-industry subsidiaries, now known as Salzgitter AG – Stahl und Technologie (SAG);

| 2. | Orders the applicant to bear one-third of its costs; |
| --- | --- |

2.

Orders the applicant to bear one-third of its costs;

| 3. | Orders the Commission to bear its own costs and to pay two-thirds of the applicant's costs; |
| --- | --- |

3.

Orders the Commission to bear its own costs and to pay two-thirds of the applicant's costs;

| 4. | Orders the Federal Republic of Germany to bear its own costs. |
| --- | --- |

4.

Orders the Federal Republic of Germany to bear its own costs.

---

(1)  OJ C 335 of 25.11.2000.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/14 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/14

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 7 July 2004

in Joined Cases T-107/01 and T-175/01: Société des mines de Sacilor — Lormines SA v Commission of the European Communities (1)

(ECSC Treaty - Steel - Abandonment of mining concessions - Charges imposed on mining undertakings by the French Republic - Complaint - No favourable response from the Commission - Action for failure to act - Action for annulment - Admissibility - Capacity to bring proceedings - Undertaking within the meaning of Article 80 CS)

(2004/C 239/29)

Language of the case: French

In Joined Cases T-107/01 and T-175/01: Société des mines de Sacilor — Lormines SA, established in Puteaux (France), represented initially by G. Marty and subsequently by R. Schmitt, lawyers, against Commission of the European Communities (Agents: G. Rozet and L. Ström) — application for failure to act and, in the alternative, for annulment, concerning the Commission's refusal to uphold the applicant's complaint seeking a declaration that the French Republic had infringed the provisions of Articles 4(b) and (c) CS and 86 CS by reason of the imposition on the applicant of allegedly excessive charges in the context of procedures for the abandonment and renunciation of its mining concessions — the Court of First Instance (Fourth Chamber), composed of H. Legal, President, V. Tiili and M. Vilaras, Judges; J. Palacio González, Principal Administrator, for the Registrar, has given a judgment on 7 July 2004, in which it:

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

1.

Dismisses the actions as inadmissible;

| 2. | Orders the applicant to pay the costs, including those of the procedure for interim measures. |
| --- | --- |

2.

Orders the applicant to pay the costs, including those of the procedure for interim measures.

---

(1)  OJ C 227 of 11.8.2001.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/15 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/15

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 8 July 2004

in Case T-198/01: Technische Glaswerke Ilmenau GmbH v Commission of the European Communities (1)

(State aid - Action for annulment - Private creditor test - Aid for rescuing and restructuring firms in difficulty - Rights of the defence - Statement of reasons)

(2004/C 239/30)

Language of the case: German

In Case T-198/01: Technische Glaswerke Ilmenau GmbH, established in Ilmenau (Germany), represented initially by S. Gerrit and C. Arhold and subsequently by C. Arhold and N. Wimmer, lawyers, with an address for service in Luxembourg, against the Commission of the European Communities (Agents: V. Kreuschitz and V. Di Bucci, with an address for service in Luxembourg), supported by Schott Glas, established in Mainz (Germany), represented by U. Soltész, lawyer — application for annulment of Commission Decision 2002/185/CE of 12 June 2001 on State aid implemented by Germany for Technische Glaswerke Ilmenau GmbH (Germany) (OJ 2002 L 62, p. 30) — the Court of First Instance (Fifth Chamber, Extended Composition), composed of R. García-Valdecasas, President, P. Lindh, J.D. Cooke, H. Legal and M.E. Martins Ribeiro, Judges; D. Christensen, Administrator, for the Registrar, gave a judgment on 8 July 2004, in which it:

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

1.

Dismisses the action;

| 2. | Orders the applicant to bear its own costs and to pay those incurred by the Commission and by the intervener in the main action and the interlocutory proceedings. |
| --- | --- |

2.

Orders the applicant to bear its own costs and to pay those incurred by the Commission and by the intervener in the main action and the interlocutory proceedings.

---

(1)  OJ C 303 of 27.10.2001.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/15 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/15

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 6 July 2004

in Case T-281/01: Hubert Huygens v Commission of the European Communities (1)

(Officials - Reporting procedure - Delay in the drawing-up of the staff report - Reasonable period - Action for damages - Material and non-material damage - Promotions procedure - Implied rejection of the applicant's promotion - Action for annulment - Decision not to promote the applicant in the 2000 promotions procedure - Lack of statement of reasons - Decision to promote 54 officials in the 2000 promotions procedure - Inadmissibility)

(2004/C 239/31)

Language of the case: French

In Case T-281/01, Hubert Huygens, an official of the Commission of the European Communities, residing in Olm (Luxembourg), represented by S. Nyssens, lawyer, with an address for service in Luxembourg, against the Commission of the European Communities (Agents: J. Curral and F. Clotuche-Duvieusart, with an address for service in Luxembourg) — application for compensation for the damage suffered as a result of the delay in the reporting procedure in respect of the applicant in the 1997/1999 procedure and, secondly, an application for the annulment of the implied rejection by the Commission of the claim for compensation for the damage suffered as a result of such delay, of the implied decision of the Commission refusing to promote the applicant to Grade B 1 in the 200 promotions procedure and of the decision of the commission to promote 54 officials to Grade B 1 in the 2000 promotions procedure and, in any event, of the decision of the Director of the Office for official publications of the European Communities to promote 4 officials to Grade B 1 as part of the 2000 promotions procedure — the Court of First Instance (First Chamber), composed of B. Vesterdorf, President, P. Mengozzi and M.E. Marins Ribeiro, Judges; J. Plingers, Administrator, for the Registrar, gave a judgment on 6 July 2004, in which it:

| 1. | Orders the Commission to pay to the applicant EUR 500 in compensation for the non-material damage suffered by him; |
| --- | --- |

1.

Orders the Commission to pay to the applicant EUR 500 in compensation for the non-material damage suffered by him;

| 2. | Annuls the decision of the Commission not to promote the applicant to Grade B 1 in the 2000 promotions procedure which emerges from the publication in Administrative Notices No 31 of 6 April 2000 of the list of officials promoted to that grade; |
| --- | --- |

2.

Annuls the decision of the Commission not to promote the applicant to Grade B 1 in the 2000 promotions procedure which emerges from the publication in Administrative Notices No 31 of 6 April 2000 of the list of officials promoted to that grade;

| 3. | Dismisses the remainder of the application; |
| --- | --- |

3.

Dismisses the remainder of the application;

| 4. | Orders the Commission to pay the costs. |
| --- | --- |

4.

Orders the Commission to pay the costs.

---

(1)  OJ C 3 of 5.1.2002.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/16 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/16

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 30 June 2004

in Case T-317/01: M+M Gesellschaft für Unternehmensberatung und Informationssysteme mbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Opposition proceedings - Application for verbal mark ‘M+M EUROdATA’ - Earlier verbal mark EURODATA TV - Relative grounds for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2004/C 239/32)

Language of the case: French

In Case T-317/01: M+M Gesellschaft für Unternehmensberatung und Informationssysteme mbH, established in Frankfurt am Main (Germany), represented by M. Treis, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: S. Laitinen and U. Pfleghar), the other party to the proceedings before the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) being Mediametrie SA, established in Paris (France), represented originally by D. Dupuis-Latour and then by S. Szilvasi, lawyers — action brought against the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 October 2001 in Case R 698/2000-1 concerning opposition proceedings between Mediametrie SA and M+M Gesellschaft für Unternehmensberatung und Informationssysteme mbH — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A.W.H. Meij and N.J. Forwood, Judges; D. Christensen, Administrator, for the Registrar, has given a judgment on 30 June 2004, in which it:

| 1. | Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 October 2001 in Case R 698/2000-1, save in so far as it referred the case back to the Opposition Division for the latter to act on the application for a trade mark in respect of the goods and services covered by that application and falling within Classes 9, 16 and 42; |
| --- | --- |

1.

Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 October 2001 in Case R 698/2000-1, save in so far as it referred the case back to the Opposition Division for the latter to act on the application for a trade mark in respect of the goods and services covered by that application and falling within Classes 9, 16 and 42;

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

2.

Orders the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the applicant's costs;

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

3.

Orders the intervener to bear its own costs.

---

(1)  OJ C 56 of 2.3.2002.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/16 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/16

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 8 July 2004

in Case T-334/01: MFE Marienfelde GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Opposition proceedings - Earlier word mark HIPPOVIT - Application for Community word mark HIPOVITON - Genuine use of the earlier trade mark - Article 43(2) and (3) of Regulation (EC) No 40/94 - Right to be heard)

(2004/C 239/33)

Language of the case: German

In Case T-334/01: MFE Marienfelde GmbH, established in Hamburg (Germany), represented by S. Rojahn and S. Freytag, lawyers, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: E. Joly and G. Schneider), the other party to the proceedings before the OHIM Board of Appeal, intervening before the Court of First Instance, being Vétoquinol AG, fomerly Chassot AG, established in Bern (Switzerland), represented by A. Kockläuner, lawyer — action brought against the decision of the Fourth Board of Appeal of OHIM of 26 September 2001 (Case R 578/2000-4), relating to opposition proceedings between MFE Marienfelde GmbH and Vétoquinol AG — the Court of First Instance (Second Chamber), composed of N.J. Forwood, President, J. Pirrung and A.W.H. Meij, Judges; D. Christensen, administrator, for the Registrar, gave a judgment on 8 July 2004, in which it:

| 1. | Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 September 2001 (Case R 578/2000-4); |
| --- | --- |

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 September 2001 (Case R 578/2000-4);

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

2.

Dismisses the remainder of the action;

| 3. | Orders OHIM to bear its own costs and to pay those incurred by the applicant; |
| --- | --- |

3.

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

| 4. | Orders the intervener to bear its own costs. |
| --- | --- |

4.

Orders the intervener to bear its own costs.

---

(1)  OJ C 68 of 16.3.2002.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/17 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/17

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 30 June 2004

in Case T-107/02: GE Betz Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Opposition procedure - Earlier figurative mark - Application for Community word mark BIOMATE - Failure to produce evidence in the language of the opposition proceedings - Legitimate expectation - Rules 16, 17 and 18 of Regulation (EC) No 2868/95)

(2004/C 239/34)

Language of the case: English

In Case T-107/02: GE Betz Inc., formerly BetzDearborn Inc., whose registered office is in Trevose, Pennsylvania (United States of America), represented by G. Glas and K. Manhaeve, lawyers, with an address for service in Luxembourg, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: initially E. Joly and subsequently G. Schneider), the other party to the proceedings before the OHIM Board of Appeal, being Atofina Chemicals Inc., whose registered office is in Philadelphia, Pennsylvania (United States of America), represented by M. Edenborough, barrister, and M. Medyckyj, solicitor — action brought against the decision of the First Board of Appeal of OHIM of 17 January 2002 (Case R 1003/2000-1), relating to opposition proceedings between Atofina Chemicals Inc. and GE Betz Inc. — the Court of First Instance (Second Chamber), composed of N.J. Forwood, President, J. Pirrung and A.W.H. Meij, Judges; J. Plingers, Administrator, for the Registrar, has given a judgment on 30 June 2004, in which it:

| 1. | Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 17 January 2002 (Case R 1003/2000-1) in so far as it annuls the decision of the Opposition Division of 7 September 2000, remits the case to the Opposition Division for further prosecution and orders each party to bear the costs which they have incurred in connection with the proceedings before the Board of Appeal; |
| --- | --- |

1.

Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 17 January 2002 (Case R 1003/2000-1) in so far as it annuls the decision of the Opposition Division of 7 September 2000, remits the case to the Opposition Division for further prosecution and orders each party to bear the costs which they have incurred in connection with the proceedings before the Board of Appeal;

| 2. | Orders the Office to pay the costs incurred by the applicant, including those incurred by it in connection with the proceedings before the Board of Appeal; |
| --- | --- |

2.

Orders the Office to pay the costs incurred by the applicant, including those incurred by it in connection with the proceedings before the Board of Appeal;

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

3.

Orders the intervener to bear its own costs.

---

(1)  OJ C 169 of 13.7.2002.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/17 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/17

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 13 July 2004

in Case T-115/02: AVEX Inc v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Opposition procedure - Application for a Community figurative mark comprising the letter ‘a’ - Earlier Community figurative mark comprising the letter ‘a’ - Likelihood of confusion)

(2004/C 239/35)

Language of the case: German

In Case T-115/02: AVEX Inc., established in Tokyo (Japan), represented by J. Hofmann, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: D. Schennen and G. Schneider), the other party to the proceedings before the Board of Appeal of OHIM and the intervener before the Court of First Instance being Ahlers AG, formerly Adolf Ahlers AG, established in Herford (Germany), represented by E.P. Krings, lawyer — action brought against the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 February 2002 (Case R 634/2002-1) relating to the opposition filed by the proprietor of the Community figurative mark comprising the letter ‘a’ against registration of a Community figurative mark comprising the letter ‘a’ — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A.W.H. Meij and N.J. Forwood, Judges; I. Natsinas, Administrator, for the Registrar, has given a judgment on 13 July 2004, in which it:

| 1. | Dismisses the application; |
| --- | --- |

1.

Dismisses the application;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 144 of 15.6.2002.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/18 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/18

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 6 July 2004

in Case T-117/02: Grupo El Prado Cervera, SL v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark ‘CHUFAFIT’ - Earlier national word and figurative marks ‘CHUFI’ - Likelihood of confusion - Likelihood of association - Article 8(1)(b) of Regulation (EC) No 40/94)

(2004/C 239/36)

Language of the case: German

In Case T-117/02: Grupo El Prado Cervera, SL, established in Valencia (Spain), represented by P. Koch Moreno, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: J.F. Crespo Carrillo and G. Schneider), the other parties to the proceedings before the Board of Appeal of OHIM, intervening before the Court of First Instance, being Helene Debuschewitz and Others, as heirs of Johann Debuschewitz, residing at Rösrath-Forsbach (Germany), represented by E. Krings, lawyer — action for annulment of the decision of the First Board of Appeal of OHIM of 12 February 2002 (Case R 798/2001-1) concerning the opposition proceedings between Grupo El Prado Cervera, SL, and J. Debuschewitz — the Court of First Instance (First Chamber), composed of B. Vesterdorf, President, P. Mengozzi and M.E. Martins Ribeiro, Judges; I. Natsinas, Administrator, for the Registrar, has given a judgment on 6 July 2004, in which it:

| 1. | Dismisses the application; |
| --- | --- |

1.

Dismisses the application;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 156 of 29.6.2002.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/18 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/18

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 15 July 2004

in Joined Cases T-180/02 and T-113/03: Georgios Gouvras v Commission of the European Communities (1)

(Officials - Posting - Secondment in the interest of the service - Change with retrospective effect of the place of employment and of the financial entitlements relating to it - Recovery of undue payment - Installation allowance and daily subsistence allowance - Transfer of part of emoluments from the place of posting)

(2004/C 239/37)

Language of the case: French

In Joined Cases T-180/02 and T-113/03: Georgios Gouvras, an official of the Commission of the European Communities, residing at Bereldange (Luxembourg), represented by J.-N. Louis, É. Marchal and A. Coolen, lawyers, with an address for service in Luxembourg, against Commission of the European Communities (Agents: J. Curral and L. Lozano Palacios, with an address for service in Luxembourg) — application:

in Case T-180/02, for annulment of the Commission's decision to fix, with retrospective effect from 1 November 2000 during the period of his secondment in the interest of the service, the applicant's place of employment as Athens, to withdraw his right to the expatriation allowance and his right to reimbursement of annual travel expenses and to apply the weighting coefficient for Greece to his pay, as well as the decision to recover the undue payment, and,

in Case T-113/03, for annulment of the Commission's decision refusing the applicant the installation allowance and the daily subsistence allowance for the period of his secondment to Athens in the interest of the service and the payment of the installation allowance on his resettlement in Luxembourg, as well as the decision limiting to 35 % the part of his pay to be transferred to his place of employment in Luxembourg during the period of his secondment — the Court of First Instance (Third Chamber), composed of J. Azizi, President, M. Jaeger and F. Dehousse, Judges; I. Natsinas, Administrator, for the Registrar, has given a judgment on 15 July 2004, in which it:

| 1. | Annuls the Commission's decision of 30 April 2002 insofar as it refused the applicant the installation allowance on his secondment to Athens; |
| --- | --- |

1.

Annuls the Commission's decision of 30 April 2002 insofar as it refused the applicant the installation allowance on his secondment to Athens;

| 2. | Dismisses the other claims for annulment in Cases T-180/02 and T-113/03; |
| --- | --- |

2.

Dismisses the other claims for annulment in Cases T-180/02 and T-113/03;

| 3. | Orders the Commission to bear its own costs and to pay a third of the applicant's costs in the two cases; |
| --- | --- |

3.

Orders the Commission to bear its own costs and to pay a third of the applicant's costs in the two cases;

| 4. | Orders the applicant to bear two thirds of his costs in those cases. |
| --- | --- |

4.

Orders the applicant to bear two thirds of his costs in those cases.

---

(1)  OJ C 191 of 10.8.2002.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/19 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/19

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 30 June 2004

in Case T-186/02: BMI Bertollo Srl v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Opposition procedure - Earlier DIESEL word marks - Application for Community figurative trade mark DIESELIT - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2004/C 239/38)

Language of the case: Italian

In Case T-186/02: BMI Bertollo Srl, established in Pianezze San Lorenzo (Italy), represented by F. Tedeschini, M. Pinnarò, P. Santer, V. Corbeddu and M. Bertuccelli, lawyers, with an address for service in Luxembourg, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agent: O. Montalto) intervening before the Court of First Instance being: Diesel SpA, established in Molvena (Italy), represented by G. Bozzola and C. Bellomunno, lawyers — action brought against the decision of the Third Board of Appeal of the OHIM of 19 March 2002 (Case R 525/2001-3), concerning an opposition procedure between BMI Bertollo Srl and Diesel SpA — the Court of First Instance (Fourth Chamber), composed of: H. Legal, President, V. Tiili and M. Vilaras, Judges; B. Pastor, Deputy Registrar, for the Registrar, has given a judgment on 30 June 2004, in which it:

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

1.

Dismisses the action;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 191 of 10.8.2002.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/19 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/19

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 8 July 2004

in Case T-203/02: The Sunrider Corp. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Opposition proceedings - Earlier word mark VITAFRUT - Application for Community word mark VITAFRUIT - Genuine use of the earlier trade mark - Similarity of products - Article 8(1)(b), Article 15 and Article 43(2) and (3) of Regulation (EC) No 40/94)

(2004/C 239/39)

Language of the case: English

In Case T-203/02: The Sunrider Corp., established in Torrance, California (United States), represented by A. Kockläuner, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agent: S. Laitinen), the other party to the proceedings before the Board of Appeal of OHIM being: Juan Espadafor Caba, resident in Granada (Spain) — action brought against the decision of the First Board of Appeal of OHIM of 8 April 2002 (Case R 1046/2000-1), relating to opposition proceedings between Juan Espadafor Caba and The Sunrider Corp — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A.W.H. Meij and N.J. Forwood, Judges; M. J. Plingers, Administrator, for the Registrar, has given a judgment on 8 July 2004 in which it:

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

1.

Dismisses the action;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 233 of 28.9.2002.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/20 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/20

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 8 July 2004

in Case T-270/02: MLP Finanzdienstleistungen AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Word mark ‘bestpartner’ - Absolute grounds for refusing registration - Article 7(1)(b) and (c) of Regulation (EC) No 40/94 - Mark devoid of distinctive character - Descriptive mark)

(2004/C 239/40)

Language of the case: German

In Case T-270/02: MLP Finanzdienstleistungen AG, established in Heidelberg (Germany), represented by W. Göpfert, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agent: G. Schneider) — action brought against the decision of the Third Board of Appeal of OHIM of 26 June 2002 (Case R 206/2002-3) refusing to register the word mark ‘bestpartner’ — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A.W.H. Meij and N.J. Forwood, Judges; D. Christensen, Administrator, acting for the Registrar, has given a judgment in which it:

| 1. | Dismisses the application; |
| --- | --- |

1.

Dismisses the application;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 274 of 9.11.2002.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/20 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/20

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 30 June 2004

in Case T-281/02: Norma Lebensmittelfilialbetrieb GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Word mark ‘Mehr für Ihr Geld’ - Absolute grounds for refusal - Distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94)

(2004/C 239/41)

Language of the case: German

In Case T-281/02: Norma Lebensmittelfilialbetrieb GmbH & Co. KG, established in Nuremberg (Germany), represented by S. Rojahn and S. Freytag, lawyers, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), (Agent: D. Schennen) — action brought against the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 3 July 2002 (Case R 239/2002-3) concerning the registration of the word mark ‘Mehr für Ihr Geld’ as a Community trade mark — the Court of First Instance (Fourth Chamber), composed of H. Legal, President, V. Tiili and M. Vilaras, Judges; J. Plingers, Administrator, for the Registrar, has given a judgment on 30 June 2004, in which it:

| 1. | Dismisses the application; |
| --- | --- |

1.

Dismisses the application;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 274 of 9.11.2002.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/20 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/20

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 8 July 2004

in Case T-289/02: Telepharmacy Solutions Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Word mark TELEPHARMACY SOLUTIONS - Absolute grounds for refusal - Article 7(1)(c) of Regulation (EC) No 40/94 - Observance of the rights of defence)

(2004/C 239/42)

Language of the case: English

In Case T-289/02: Telepharmacy Solutions Inc., established in North Billerica, Massachusetts (United States), represented by R. Davis, barrister, and M. Medyckyj, solicitor, v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agent: S. Bonne) — action brought against the decision of the Fourth Board of Appeal of OHIM of 28 June 2002 (Case R 108/2001-4), concerning registration of the word sign TELEPHARMACY SOLUTIONS as a Community trade mark — the Court of First Instance (Fourth Chamber), composed of: H. Legal, President, V. Tiili and M. Vilaras, Judges; B. Pastor, Deputy Registrar, for the Registrar, has given a judgment on 8 July 2004, in which it:

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

1.

Dismisses the action;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 305 of 7.12.2002.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/21 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/21

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 15 July 2004

in Case T-384/02: Fernando Valenzuela Marzo v Commission of the European Communities (1)

(Officials - Pay - Installation allowance - Article 9(3) of Annex VII to the Staff Regulations - Period of one year)

(2004/C 239/43)

Language of the case: French

In Case T-384/02: Fernando Valenzuela Marzo, an official of the Commission of the European Communities, residing at Brussels (Belgium), represented by M.–A. Lucas, lawyer, against Commission of the European Communities (Agents: J. Curral and V. Joris, with an address for service in Luxembourg) - application for, first, annulment of the Commission's decisions of 16 November 2001 and 13 February 2002, refusing the applicant the second half of the installation allowance on the ground that his family did not settle at his place of employment within the period laid down in the regulations of one year from his taking up his post and, second, an order that the Commission pay him the second half of the installation allowance with interest thereon at an annual rate of 8 % - the Court of First Instance (Third Chamber), composed of J. Azizi, President, M. Jaeger and F. Dehousse, Judges; J. Palacio González, Principal Administrator, for the Registrar, has given a judgment on 15 July 2004, in which it:

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

1.

Dismisses the action;

| 2. | Orders the parties to pay their own costs. |
| --- | --- |

2.

Orders the parties to pay their own costs.

---

(1)  OJ C 55 of 8.3.2003.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/21 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/21

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 13 July 2004

in Case T-115/03: Samar SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark GAS STATION - Earlier national figurative mark BLUE JEANS GAS - Registration refused)

(2004/C 239/44)

Language of the case: Italian

In Case T-115/03: Samar SpA, established in Mottalciata (Italy), represented by A. Ruo, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: O. Montalto and M.L. Capostagno), the other party to the proceedings before the OHIM Board of Appeal, and intervening before the Court of First Instance, being Grotto SpA, established in Vicenza (Italy), represented by M. Bosshard and S. Verea, lawyers — action brought against the decision of the Third Board of Appeal of OHIM of 30 January 2003 (Case R 340/2002-3), concerning the opposition of the proprietor of the national figurative mark BLUE JEANS GAS to registration of the Community word mark GAS STATION — the Court of First Instance (Second Chamber), composed of: J. Pirrung, President, A.W.H. Meij and N.J. Forwood, Judges; J. Palacio González, Principal Administrator, for the Registrar, has given a judgment on 13 July 2004, in which it:

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

1.

Dismisses the action;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 135 of 7.6.2003.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/21 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/21

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 8 July 2004

in Case T-136/03: Robert Charles Schochaert v Council of the European Union (1)

(Officials - Action for damages - Refusal of promotion - Emotional harassment - Duty of assistance)

(2004/C 239/45)

Language of the case: French

In Case T-136/03: Robert Charles Schochaert, a former official of the Council of the European Union, resident in Brussels (Belgium), represented by J.A. Martin, avocat, against Council of the European Union (Agents: M. Sims and F. Anton) — application for damages in respect of the material and non-material harm allegedly suffered by reason of the Council's repeated refusal to promote the applicant to Grade B1 and in respect of alleged emotional harassment — the Court of First Instance: P. Lindh, single Judge; I. Natsinas, Administrator, for the Registrar, has given a judgment on 8 July 2004, in which it:

| 1. | Dismisses the application; |
| --- | --- |

1.

Dismisses the application;

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

2.

Orders each party to bear its own costs.

---

(1)  OJ C 146 of 21.6.2003.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/22 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/22

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 7 July 2003

in Case T-175/03: Norbert Schmitt v European Agency for Reconstruction (EAR) (1)

(Member of the temporary staff - Termination of contract - Article 47(2)(a) of the CEOS - Observance of the provisions of the contract - Legitimate expectations)

(2004/C 239/46)

Language of the case: French

In Case T-175/03: Norbert Schmitt, formerly of the temporary staff of the European Agency for Reconstruction, residing in Koellerbach (Germany), represented by L. Polanz, lawyer, against European Agency for Reconstruction (EAR) (Agent: C. Manolopoulos, assisted by J.-N. Louis, lawyer) — application for the annulment of the decision of the EAR terminating the applicant's contract and, in the alternative, an application for damages — the Court of First Instance (Fourth Chamber), composed of H. Legal, President, V. Tilli and M. Vilaras, judges; I. Natsinas, Administrator, for the Registrar, delivered a judgment on 7 July 2004 in which it:

| 1. | annuls the decision of the European Agency for Reconstruction (EAR) of 25 February 2003 terminating the applicant's contract; |
| --- | --- |

1.

annuls the decision of the European Agency for Reconstruction (EAR) of 25 February 2003 terminating the applicant's contract;

| 2. | orders the EAR to pay the costs, including those incurred in the proceedings for interim relief. |
| --- | --- |

2.

orders the EAR to pay the costs, including those incurred in the proceedings for interim relief.

---

(1)  OJ 2003 C 184.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/22 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/22

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 29 June 2004

in Case T-188/03: Joëlle Hivonnet v Council of the European Union (1)

(Officials - Education allowance - Criteria for grant - Primary schooling - Nursery school)

(2004/C 239/47)

Language of the case: French

In Case T-188/03: Joëlle Hivonnet, official of the Council of the European Union, residing in New York (United States of America), represented by G. Vandersanden and L. Levi, lawyers, against Council of the European Union (Agents: M. Sims and F. Anton) – application for annulment of the decision of the Council refusing to grant the applicant the education allowance for her daughter for the nursery school years 1999/2000 and 2000/2001 and only granting that allowance on an exceptional basis for the nursery school year 2001/2002, and a claim for compensation seeking payment of default interest on the sums corresponding to those allowances and damages for the non-pecuniary damage suffered as a result of that decision – the Court of First Instance (Single Judge: N.J. Forwood); I. Natsinas, Administrator, for the Registrar, has given a judgment on 29 June 2004, in which it:

| 1. | Dismisses the application; |
| --- | --- |

1.

Dismisses the application;

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

2.

Orders the parties to bear their own costs.

---

(1)  OJ C 184, 2.8.2003.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/22 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/22

---

ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

of 12 May 2004

in Case T-198/01 R [III]: Technische Glaswerke Ilmenau GmbH v Commission of the European Communities

(Proceedings for interim measures - State aid - Obligation to recover aid - Prima facie case - Urgency - Weighing up of interests - Exceptional circumstances)

(2004/C 239/48)

Language of the case: German

In Case T-198/01 R [III]: Technische Glaswerke Ilmenau GmbH, established in Ilmenau (Germany), represented initially by G. Schohe and C. Arhold, and subsequently by C. Arhold and N. Wimmer, lawyers, with an address for service in Luxembourg, against the Commission of the European Communities (Agents: V. Di Bucci and V. Kreuschitz), supported by Schott Glas, established in Mainz (Germany), represented by U. Soltész, lawyer — application for extension of the suspension of operation of Article 2 of Commission Decision 2002/185/EC of 12 June 2001 on State aid implemented by Germany for Technische Glaswerke Ilmenau GmbH (OJ 2002 L 62, p. 30) ordered in the present case by orders of the President of the Court of First Instance of 4 April 2002 and 1 August 2003 — the President of the Court of First Instance made an order on 12 May 2004, the operative part of which is as follows:

| 1. | The operation of Article 2 of Commission Decision 2002/185/EC of 12 June 2001 on State aid implemented by Germany for Technische Glaswerke Ilmenau GmbH is suspended pending delivery of the judgment ruling on the main action. |
| --- | --- |

1.

The operation of Article 2 of Commission Decision 2002/185/EC of 12 June 2001 on State aid implemented by Germany for Technische Glaswerke Ilmenau GmbH is suspended pending delivery of the judgment ruling on the main action.

| 2. | The costs, including those of the intervener, are reserved. |
| --- | --- |

2.

The costs, including those of the intervener, are reserved.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/23 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/23

---

ORDER OF THE COURT OF FIRST INSTANCE

of 7 June 2004

in Case T-230/02: X v Commission of the European Communities (1)

(Action for damages - Prior complaint through official channels - Action in part devoid of any legal basis and in part inadmissible)

(2004/C 239/49)

Language of the case: French

In Case T-230/02: X, a former official of the European Communities, residing at Hellerup (Denmark), represented by G. Bouneou and F. Frabetti, lawyers, with an address for service in Luxembourg, against Commission of the European Communities (Agents: C. Berardis-Kayser and D. Martin, with an address for service in Luxembourg) — application for compensation for the non-material damage allegedly suffered by the applicant as a result of the Commission's failure to comply with the judgments of the Court of First Instance and of the conduct of the applicant's line manager — the Court of First Instance (Third Chamber), composed of J. Azizi, President, M. Jaeger and F. Dehousse, Judges; H. Jung, Registrar, has made an order on 7 June 2004, in which it:

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

1.

Dismisses the action;

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

2.

Orders the parties to bear their own costs.

---

(1)  OJ C 247 of 12.10.2002.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/23 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/23

---

ORDER OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

of 27 May 2004

in Case T-379/02: Antonio Di Adolfo v Commission of the European Communities (1)

(Action for annulment - Time-limits - Claim for compensation - Originating application - Formal requirements - Injunction against an institution - Manifestly inadmissible)

(2004/C 239/50)

Language of the case: Italian

In Case T-379/02: Antonio Di Adolfo, residing at Rome (Italy), represented by S. Amato, lawyer, against Commission of the European Communities (Agent: E. Montaguti assisted by A. Dal Ferro, lawyer) with an address for service in Luxembourg — application for, on one hand, annulment of the Commission Decision of 30 October 2001 withdrawing financial assistance originally granted to the applicant in the context of the Joint Venture Programme for the incorporation of an Italo-Romanian joint venture company (JOP Facility 2 — Project in Romania with Phoenix European S.r.l. - J2BROSEVEN) and, on the other hand, damages in respect of the loss allegedly caused to the applicant — the Court of First Instance (Fourth Chamber), composed of H. Legal, President, V. Tiili and M. Vilaras, Judges; H. Jung, Registrar, made an order on 27 May 2004, the operative part of which is as follows:

| 1. | The claim is dismissed as manifestly inadmissible; |
| --- | --- |

1.

The claim is dismissed as manifestly inadmissible;

| 2. | The applicant is ordered to pay the costs. |
| --- | --- |

2.

The applicant is ordered to pay the costs.

---

(1)  OJ C 44, 22.2.2003.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/23 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/23

---

ORDER OF THE COURT OF FIRST INSTANCE

of 6 May 2004

in Case T-34/03: André Hecq v Commission of the European Communities (1)

(Staff cases - Act adversely affecting an official - Capacity to bring proceedings - Official acting personally and not on behalf of a trade union organisation - Inadmissibility)

(2004/C 239/51)

Language of the case: French

In Case T-34/03: André Hecq, a former official of the Commission of the European Communities, residing in Mondercange (Luxembourg), represented by L. Vogel, lawyer, against the Commission of the European Communities (Agents: J. Currall and V. Joris) — application for annulment of the Commission's decision of 4 October 2002 rejecting the complaint brought by Mr Hecq, acting both personally and in his capacity as President of the Syndicat des Fonctionnaires Internationaux et Européens, against various decisions relating to the representation of staff and the resources made available by the Commission, and for compensation for the damage allegedly suffered as a result of those decisions — the Court of First Instance (Fifth Chamber), composed of P. Lindh, President, R.Garcia-Valdecasas and J.D. Cooke, Judges; H. Jung, Registrar, has made an order on 6 May 2004, in which it:

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

1.

Dismisses the action as inadmissible;

| 2. | Orders the applicant to bear his own costs and pay those of the Commission. |
| --- | --- |

2.

Orders the applicant to bear his own costs and pay those of the Commission.

---

(1)  OJ C 101 of 26.04.2003.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/24 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/24

---

ORDER OF THE COURT OF FIRST INSTANCE

of 10 May 2004

in Joined Cases T-314/03 and T-378/03: Musée Grévin SA v Commission of the European Communities (1)

(PHARE/JOP Programme - Joint venture project in Poland - Community financing - Claim for reimbursement of the full amount paid - Arbitration clause - Action for annulment - Inadmissibility)

(2004/C 239/52)

Language of the case: French

In Joined Cases T-314/03 and T-378/03: Musée Grévin SA, established in Paris, (France), represented by B. Geneste and O. Davidson, lawyers, against the Commission of the European Communities (Agents: J. Sack and G. Boudot) — application for annulment of the letters of the Commission of 8 July and 30 September 2003 to Crédit Lyonnais seeking to recover the funds paid to the applicant by way of subsidies granted in the context of the JOP programme — Facilité 2 — the Court of First Instance (Third Chamber), composed of J. Azizi, President, M. Jaeger and F. Dehousse, Judges; H. Jung, Registrar, made an order on 10 May 2004, the operative part of which is as follows:

| 1. | The applications are dismissed as inadmissible. |
| --- | --- |

1.

The applications are dismissed as inadmissible.

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

2.

The applicant shall bear the costs.

---

(1)  OJ 2003 C 275.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/24 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/24

---

ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

of 9 June 2004

in Case T-91/04 R: Alexander Just v Commission of the European Communities

(Proceedings for interim measures - Competition procedure - Suspension of enforcement - Admissibility)

(2004/C 239/53)

Language of the case: German

In Case T-91/04 R: Alexander Just, residing in Brussels (Belgium), represented by G. Lebitsch, lawyer, against Commission of the European Communities (Agent: H. Krämer, assisted by B. Wägenbaur, lawyer, with an address for service in Luxembourg) — application for the suspension of competition COM/A/2/02 to constitute a reserve of assistant administrators (A8) in the field of ‘Environment’, or alternatively for the suspension of the validity of the reserve list of candidates in that competition — the President of the Court of First Instance made an order on 9 June 2004, the operative part of which is as follows:

| 1. | The application for interim measures is dismissed. |
| --- | --- |

1.

The application for interim measures is dismissed.

| 2. | Costs are reserved. |
| --- | --- |

2.

Costs are reserved.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/24 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/24

---

ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

of 9 June 2004

in Case T-92/04 R: Marta Christina Moren Abat v Commission of the European Communities

(Interim measures - Competition - Suspension of operation - Admissibility)

(2004/C 239/54)

Language of the case: German

In Case T-92/04 R: Marta Christina Moren Abat, resident at Brussels (Belgium), respresented by G. Lebitsch, lawyer, against Commission of the European Communities (Agent: H. Krämer, assisted by B. Wägenbaur, lawyer, with an address for service in Luxembourg) — application for suspension of Competition COM/A/2/02 for the constitution of a reserve for future recruitment of administrators (A7/A6) in the Environment field, or alternatively, for the suspension of the validity of the reserve list of candidates of that competition — the President of the Court of First Instance has made an order on 9 June 2004, in which he:

| 1. | Refuses the application for interim measures; |
| --- | --- |

1.

Refuses the application for interim measures;

| 2. | Reserves the costs. |
| --- | --- |

2.

Reserves the costs.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/25 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/25

---

Action brought on 23 April 2004 by Mühlens GmbH & Co. KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-150/04)

(2004/C 239/55)

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 23 April 2004 by Mühlens GmbH & Co. KG, Cologne (Germany) represented by T. Schulte-Beckhausen, lawyer.

Minoronzoni S.r.l., Ponte San Pietro (Bergamo), (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 defendant of 18 February 2004 (Case R 949/2001-1); |
| --- | --- |

—

annul the decision of the First Board of Appeal of the defendant of 18 February 2004 (Case R 949/2001-1);

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

—

order the defendant to pay the costs.

Pleas in law and main arguments:

| Applicant for Community trade mark: | Minoronzoni S.r.l. |
| --- | --- |
| Community trade mark sought: | Figurative mark ‘TOSCA BLU’ for goods in Classes 18 and 25 (including bags; handbags; travelling bags; clothing for men, women and children in general) – Application No 1 008 291 |
| Proprietor of mark or sign cited in the opposition proceedings: | The applicant |
| Mark or sign cited in opposition. | German word mark ‘TOSCA’ for perfumery products (including ‘Parfum’, ‘Eau de Toilette’ and ‘Eau de Parfum pour femmes’) |
| Decision of the Opposition Division: | Opposition rejected |
| Decision of the Board of Appeal: | Applicant's appeal dismissed |
| Pleas in law: | — | The opposition based on the well-known mark ‘TOSCA’ is well founded under Article 8(1)(b) of Regulation No 40/94. |

Applicant for Community trade mark:

Minoronzoni S.r.l.

Community trade mark sought:

Figurative mark ‘TOSCA BLU’ for goods in Classes 18 and 25 (including bags; handbags; travelling bags; clothing for men, women and children in general) – Application No 1 008 291

Proprietor of mark or sign cited in the opposition proceedings:

The applicant

Mark or sign cited in opposition.

German word mark ‘TOSCA’ for perfumery products (including ‘Parfum’, ‘Eau de Toilette’ and ‘Eau de Parfum pour femmes’)

Decision of the Opposition Division:

Opposition rejected

Decision of the Board of Appeal:

Applicant's appeal dismissed

Pleas in law:

—

The opposition based on the well-known mark ‘TOSCA’ is well founded under Article 8(1)(b) of Regulation No 40/94.

| — | There is a likelihood of confusion between the opposing names. |
| --- | --- |

—

There is a likelihood of confusion between the opposing names.

| — | The opposing goods are similar. |
| --- | --- |

—

The opposing goods are similar.

| — | There is a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation (EC) No 40/94. |
| --- | --- |

—

There is a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation (EC) No 40/94.

| — | The opposition is entitled to |
| --- | --- |

—

The opposition is entitled to

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/25 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/25

---

Action brought on 7 June 2004 by Dominique Hardy against the Council of the European Union and the Commission of the European Communities

(Case T-208/04)

(2004/C 239/56)

Language of the case: French

An action against the Council of the European Union and the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 7 June 2004 by Dominique Hardy, whose place of business is in Coudeville-plage (France), represented by Jean-François Péricaud, lawyer.

The applicant claims that the Court should:

| | hold that the European Community has become liable to her by the adoption, and then application, to the detriment of ship's agents (agents maritimes), of Article 5 of the Community Customs Code in an unlawful manner; |
| --- | --- |

hold that the European Community has become liable to her by the adoption, and then application, to the detriment of ship's agents (agents maritimes), of Article 5 of the Community Customs Code in an unlawful manner;

| | alternatively, hold that the European Community has become liable to her by the adoption, even if lawful, and then application of Article 5 of the Community Customs Code, having caused her to suffer an abnormal and special loss; |
| --- | --- |

alternatively, hold that the European Community has become liable to her by the adoption, even if lawful, and then application of Article 5 of the Community Customs Code, having caused her to suffer an abnormal and special loss;

| | order the Council and the Commission jointly and severally to pay to her damages of EUR 60 510 or, alternatively, of EUR 47 829 together with interest in both cases at the legal rate from the date on which the present action was brought; |
| --- | --- |

order the Council and the Commission jointly and severally to pay to her damages of EUR 60 510 or, alternatively, of EUR 47 829 together with interest in both cases at the legal rate from the date on which the present action was brought;

| | order the Council and the Commission jointly and severally to pay the costs. |
| --- | --- |

order the Council and the Commission jointly and severally to pay the costs.

Pleas in law and main arguments

The applicant states that, following the commencement by the Commission of a Treaty infringement procedure against the French State, France has, in order to bring French law into line with Article 5 of Regulation No 2913/92 (1), repealed the monopoly held by ship's agents, of whom the applicant is one, to deal with the customs authorities. According to the applicant, the withdrawal of that monopoly follows directly from the application of Article 5 of Regulation No 2913/92 and is therefore directly attributable to the European Community.

The applicant's main submission is that the adoption of Article 5 of Regulation No 2913/92 constitutes an unlawful act for which the Community is liable.

Firstly, the applicant claims that that article fails to have regard to the derogatory provisions of Article 45 of the EC Treaty to the extent that the profession of ship's agent, by application of customs legislation, is involved in the exercise of public authority.

The applicant then alleges a breach of the principles of legal certainty and the protection of legitimate expectations. The applicant claims, on one hand, that Article 5 of Regulation No 2913/92 refers to the concept of ‘representation at customs’ which is different from that of ‘dealing with the customs authorities’, the latter being essentially carried out by ship's agents. An interpretation by analogy of that article would, according to the applicant, be contrary to the principle of legal certainty. On the other hand, the applicant alleges a violation of her legitimate expectations, arising from the absence of any transitional measure and from the fact that French ship's agents were the only ones in the Community to be constantly excluded from the earlier liberalisation measures.

Furthermore, the applicant alleges a breach, constituted by the absence of transitional measures, of the principles of equality and proportionality. Finally, the applicant alleges a breach of the right to respect of property in that the abolition of the monopoly renders the office of ship's agent non-transferable and entirely worthless.

The applicant claims, in the alternative, that the Community is liable on a no-fault basis given the abnormal and special nature of the loss suffered. According to the applicant, the harm is abnormal in that the loss of the economic value of the office and of the profit margin exceeds normal economic risks and is special in that ship's agents constitute a clearly distinct category of traders.

---

(1)  Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ L 302, 19.10.1992, p. 1).

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/26 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/26

---

Action brought on 24 June 2004 by Adriatica di Navigazione S.p.A. against the Commission of the European Communities

(Case T-265/04)

(2004/C 239/57)

Language of the case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance on 24 June 2004 by Adriatica di Navigazione S.p.A., represented by Gian Michele Roberti, Alessandra Franchi and Guido Bellitti.

The applicant claims that the Court of First Instance should:

| | annul the contested decision in so far as it considers the subsidies in respect of public-service obligations made to Adriatica to be aid for the purposes of Article 87 of the Treaty and classifies those measures as new aid; |
| --- | --- |

annul the contested decision in so far as it considers the subsidies in respect of public-service obligations made to Adriatica to be aid for the purposes of Article 87 of the Treaty and classifies those measures as new aid;

| | or annul Article 1(2) of the contested decision; |
| --- | --- |

or annul Article 1(2) of the contested decision;

| | or, as a subsidiary claim, annul Article 1(3) of the contested decision in so far as it requires Italy to recover the aid together with interest; |
| --- | --- |

or, as a subsidiary claim, annul Article 1(3) of the contested decision in so far as it requires Italy to recover the aid together with interest;

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

order the Commission to pay the costs.

Pleas in law and main arguments

By this application the company Adriatica di Navigazione S.p.A. challenges, pursuant to the fourth paragraph of Article 230 of the EC Treaty, the decision of the European Commission of 16 March C(2004) 470 concerning State aid granted by Italy to the shipping companies Adriatica, Caremar, Siremar, Saremar and Toremar. In particular, the applicant asks the Court of First Instance to annul the decision under challenge inasmuch as it considers the subsidies in respect of public-service obligations made to Adriatica to be aid for the purposes of Article 87 of the Treaty, and classifies those measures as new aid.

In support of its action, the applicant puts forward three grounds of challenge.

By the first, the applicant alleges that the Commission made a twofold error of assessment. First, in its view, the Commission's decision is vitiated because the Commission wrongly classified the subsidies granted by the Italian State to the shipping companies of the Gruppo Tirrenia to offset the costs of their public-service obligations (P-S.Os) as aid for the purposes of Article 87 EC. As a result of this mistaken classification the decision under challenge infringes (a) the sphere of discretion possessed by the authorities of the Member States in connection with the identifying and funding of P-S.Os, and (b) Article 4(3) of Regulation 3577/92 (1). In the second place, Adriatica maintains that in any case the Commission fell into an error of assessment in classifying those subsidies as new aid. In this regard, the applicant points out first of all that the Commission failed to take into consideration that the relevant legislation and the public-service Conventions of the regional companies of the Gruppo Tirrenia had been notified to the Commission and had been authorised by the latter either expressly or by implication.

By its second plea, the applicant challenges the errors of assessment that it claims the Commission made in its contested decision in finding that the scheme of subsidies for Adriatica between 1992 and 1994 was incompatible [with the common market] because Adriatica was responsible for anti-competitive conduct prohibited by Article 81 EC. On this point, the applicant notes that that assessment is incorrect since the Commission ought first of all to have ascertained whether there was any causal connection between the particular case which constitutes contravention of competition and the case of the aid measures, and to have recognised that there was, in the circumstances, no such causal connection. In addition, the applicant stresses that, for the purposes of ascertaining whether there existed such a connection, the mere coincidence of the subject-matter of the contravention of competition and the abovementioned subsidies was quite irrelevant. Here, the applicant also alleges breach of the obligation to give reasons laid down in Article 253 EC.

Finally, the applicant's third plea in law claims that the decision under challenge is unlawful inasmuch as it orders that the aid given to Adriatica for the period from January 1992 to July 1994 should be recovered, contrary to the general principles of the protection of legitimate expectations and of the proportionality of administrative action.

---

(1)  Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (OJ 1992 L 364, p. 7).

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/27 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/27

---

Removal from the Register of Case T-14/00 (1)

(2004/C 239/58)

(Language of the case: Dutch)

By order of 4 May 2004 the President of the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-14/00, C.A.V. Ulestraten-Schimmert-Hulsberg and Others, supported by the Kingdom of the Netherlands v Commission of the European Communities.

---

(1)  OJ C 135, 13.5.2000.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/27 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/27

---

Removal from the Register of Case T-236/99 (1)

(2004/C 239/59)

(Language of the case: Dutch)

By order of 4 May 2004, the President of the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-236/99, Direcks Service Station Bocholtz B.V., supported by the Kingdom of the Netherlands v Commission of the European Communities.

---

(1)  OJ C 47, 19.2.2000.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/28 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/28

---

Removal from the Register of Case T-263/99 (1)

(2004/C 239/60)

(Language of the case: Dutch)

By order of 4 May 2004, the President of the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-263/99, Autobedrijf Chr. Kerres B.V., supported by the Kingdom of the Netherlands v Commission of the European Communities.

---

(1)  OJ C 6, 8.1.2000.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/28 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/28

---

Removal from the Register of Case T-264/99 (1)

(2004/C 239/61)

(Language of the case: Dutch)

By order of 4 May 2004, the President of the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-264/99, Demarol B.V., supported by the Kingdom of the Netherlands v Commission of the European Communities.

---

(1)  OJ C 34, 5.2.2000.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/28 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/28

---

Removal from the Register of Case T-280/99 (1)

(2004/C 239/62)

(Language of the case: Dutch)

By order of 4 May 2004, the President of the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-280/99, Van Gelder Aardolie B.V., supported by the Kingdom of the Netherlands v Commission of the European Communities.

---

(1)  OJ C 47, 19.2.2000.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/28 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/28

---

Removal from the Register of Case T-284/99 (1)

(2004/C 239/63)

(Language of the case: Dutch)

By order of 4 May 2004, the President of the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-284/99, Vlutters Kapitein B.V., supported by the Kingdom of the Netherlands v Commission of the European Communities.

---

(1)  OJ C 47, 19.2.2000.

---

| 25.9.2004 | EN | Official Journal of the European Union | C 239/28 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/28

---

Removal from the Register of Case T-325/03 (1)

(2004/C 239/64)

(Language of the case: German)

By order of 6 May 2004, the President of the Second Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-325/03, E-Sim Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).

---

(1)  OJ C 289, 29.11.2003.

---

III Notices

| 25.9.2004 | EN | Official Journal of the European Union | C 239/29 |
| --- | --- | --- | --- |

25.9.2004

EN

Official Journal of the European Union

C 239/29

---

(2004/C 239/65)

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

OJ C 228, 11.9.2004

Past publications

OJ C 217, 28.8.2004

OJ C 201, 7.8.2004

OJ C 190, 24.7.2004

OJ C 179, 10.7.2004

OJ C 168, 26.6.2004

OJ C 156, 12.6.2004

These texts are available on:

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

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

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

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

---