# Official Journal C 261/2006

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 261 |
| | |
| English edition | Information and Notices | Volume 4928 October 2006 |

ISSN 1725-2423

Official Journal

of the European Union

C 261

English edition

Information and Notices

Volume 4928 October 2006

---

| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2006/C 261/1 | Case C-88/03: Judgment of the Court (Grand Chamber) of 6 September 2006 — Portuguese Republic v Commission of the European Communities (Action for annulment — State aid — Decision 2003/442/EC — Tax measures adopted by a regional or local authority — Reductions on the rate of income tax for natural and legal persons having their tax residence in the Azores — Classification as State aid — Selective nature — Justification by the nature and overall structure of the tax system — Obligation to state reasons — Compatibility with the common market) | 1 |
| 2006/C 261/2 | Case C-180/04: Judgment of the Court (Second Chamber) of 7 September 2006 (reference for a preliminary ruling from the Tribunale di Genova — Italy) — Andrea Vassallo v Azienda Ospedaliera Ospedale San Martino di Genova e Cliniche Universitarie Convenzionate (Directive 1999/70/EC — Clauses 1(b) and 5 of the framework agreement on fixed-term work — Establishment of employment relationships of indefinite duration resulting from infringement of the rules governing successive fixed-term contracts — Possible derogation in respect of employment contracts in the public sector) | 1 |
| 2006/C 261/3 | Case C-193/04: Judgment of the Court (First Chamber) of 7 September 2006 (reference for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Fazenda Pública v Organon Portuguesa — Produtos Químicos e Farmacêuticos Lda (Indirect taxes on the raising of capital — Directive 69/335/EEC — Disposal of shares of a limited company) | 2 |
| 2006/C 261/4 | Case C-470/04: Judgment of the Court (First Chamber) of 7 September 2006 (reference for a preliminary ruling from the Gerechtshof te Arnhem (Netherlands)) — N v Inspecteur van de Belastingdienst Oost/kantoor Almelo (Freedom of movement for persons — Article 18 EC — Freedom of establishment — Article 43 EC — Direct taxation — Taxation of notional increases in value of substantial shareholdings where tax residence transferred to another Member State) | 2 |
| 2006/C 261/5 | Case C-484/04: Judgment of the Court (Third Chamber) of 7 September 2006 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Failure of a Member State to fulfil obligations — Social policy — Protection of the health and safety of workers — Directive 93/104/EC — Organisation of working time — Article 17(1) — Derogation — Articles 3 and 5 — Right to minimum daily and weekly rest periods) | 3 |
| 2006/C 261/6 | Case C-489/04: Judgment of the Court (Fourth Chamber) of 7 September 2006 (reference for a preliminary ruling from the Verwaltungsgericht Sigmaringen, Germany) — Alexander Jehle, Weinhaus Kiderlen v Land Baden-Württemberg (Regulation (EC) No 1019/2002 — First paragraph of Article 2 — Olive oil and olive-pomace oil — Marketing standards — Retail trade — Presentation to the final consumer — So-called bag in the box method) | 4 |
| 2006/C 261/7 | Case C-81/05: Judgment of the Court (First Chamber) of 7 September 2006 (reference for a preliminary ruling from the Tribunal Superior de Justicia de Castilla y León — Spain) — Anacleto Cordero Alonso v Fondo de Garantía Salarial (Fogasa) (Social policy — Protection of workers in the event of the insolvency of their employer — Directive 80/987/EEC — Amending Directive 2002/74/EC — Compensation for dismissal agreed during conciliation — Payment guaranteed by the guarantee institution — Payment subject to the adoption of a judicial decision) | 4 |
| 2006/C 261/8 | Case C-125/05: Judgment of the Court (Third Chamber) of 7 September 2006 (reference for a preliminary ruling from the Østre Landsret, Denmark) — VW-Audi Forhandlerforeningen, acting on behalf of Vulcan Silkeborg A/S v Skandinavisk Motor Co. A/S (Competition — Distribution agreement relating to motor vehicles — Block exemption — Regulation (EC) No 1475/95 — Article 5(3) — Termination by the supplier — Entry into force of Regulation (EC) No 1400/2002 — Requirement to reorganise the distribution network — Period of notice — Statement of reasons — Burden of proof) | 5 |
| 2006/C 261/9 | Case C-149/05: Judgment of the Court (First Chamber) of 7 September 2006 (reference for a preliminary ruling from the Cour d'appel de Paris (France)) — Harold Price v Conseil des ventes volontaires de meubles aux enchères publique (Directives 89/48/EEC and 92/51/EEC — Workers — Recognition of professional education and training — Requirement to undergo an aptitude test without the opportunity to choose an adaptation period — Voluntary sales of chattels by public auction) | 6 |
| 2006/C 261/0 | Case C-166/05: Judgment of the Court (Third Chamber) of 7 September 2006 (reference for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Heger Rudi GmbH v Finanzamt Graz-Stadt (Sixth VAT Directive — Place of supply for tax purposes — Article 9 — Supply of services connected with immovable property — Transmission of the fishing rights over a particular part of a stretch of water) | 6 |
| 2006/C 261/1 | Case C-287/06: Reference for a preliminary ruling from the Verwaltungsgericht Köln (Germany) lodged on 3 July 2006 — Deutsche Post AG v Bundesrepublik Deutschland, Third party: Marketing Service Magdeburg GmbH | 7 |
| 2006/C 261/2 | Case C-288/06: Reference for a preliminary ruling from the Verwaltungsgericht Köln (Germany) lodged on 3 July 2006 — Deutsche Post AG v Bundesrepublik Deutschland, Third party: Citipost Gesellschaft für Kurier- und Postdienstleistungen mbH Hannover | 7 |
| 2006/C 261/3 | Case C-289/06: Reference for a preliminary ruling from the Verwaltungsgericht Köln (Germany) lodged on 3 July 2006 — Magdeburger Dienstleistungs- und Verwaltungs GmbH (MDG) v Bundesrepublik Deutschland, Third party: Deutsche Post AG | 7 |
| 2006/C 261/4 | Case C-290/06: Reference for a preliminary ruling from the Verwaltungsgericht Köln (Germany) lodged on 3 July 2006 — Marketing Service Magdeburg GmbH v Bundesrepublik Deutschland, Third party: Deutsche Post AG | 8 |
| 2006/C 261/5 | Case C-291/06: Reference for a preliminary ruling from the Verwaltungsgericht Köln lodged on 3 July 2006 — Deutsche Post AG v Bundesrepublik Deutschland, Third Party: MDG Magdeburger Dienstleistungs- und Verwaltungs GmbH | 8 |
| 2006/C 261/6 | Case C-292/06: Reference for a preliminary ruling from the Verwaltungsgericht Köln lodged on 3 July 2006 — Vedat Deniz v Bundesrepublik Deutschland, Third Party: Deutsche Post AG | 9 |
| 2006/C 261/7 | Case C-308/06: Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) made on 14 July 2006 — The Queen on the application of The International Association of Independent Tanker Owners (Intertanko), The International Association of Dry Cargo Shipowners (Intercargo), The Greek Shipping Co-operation Committee, Lloyd's Register, The International Salvage Union v Secretary of State for Transport | 9 |
| 2006/C 261/8 | Case C-309/06: Reference for a preliminary ruling from House of Lords (United Kingdom) made on 17 July 2006 — Marks & Spencer plc v Her Majesty's Commissioners of Customs and Excise | 10 |
| 2006/C 261/9 | Case C-334/06: Reference for a preliminary ruling from the Verwaltungsgericht Chemnitz (Germany) lodged on 3 August 2006 — Matthias Zerche v Landkreis Mittweida | 11 |
| 2006/C 261/0 | Case C-335/06: Reference for a preliminary ruling from the Verwaltungsgericht Chemnitz (Germany) lodged on 3 August 2006 — Manfred Seuke v Landkreis Mittlerer Erzgebirgskreis | 11 |
| 2006/C 261/1 | Case C-336/06: Reference for a preliminary ruling from the Verwaltungsgericht Chemnitz (Germany) lodged on 3 August 2006 — Manfred Seuke v Landkreis Mittweida | 11 |
| 2006/C 261/2 | Case C-338/06: Action brought on 4 August 2006 — Commission of the European Communities v Kingdom of Spain | 12 |
| 2006/C 261/3 | Case C-344/06 P: Appeal brought on 8 August 2006 by J. C. Blom against the judgment of the Court of First Instance (Fifth Chamber) delivered on 30 May 2006 in Case T-87/94 J.C. Blom v Council of the European Union and Commission of the European Communities | 13 |
| 2006/C 261/4 | Case C-362/06P: Appeal brought on 4 September 2006 by Markku Sahlstedt, Juha Kankkunen, Mikko Tanner, Toini Tanner, Liisa Tanner, Eeva Jokinen, Aili Oksanen, Olli Tanner, Leena Tanner, Aila Puttonen, Risto Tanner, Tom Järvinen, Runo K. Kurko, Maa- ja metsätaloustuottajain keskusliitto MTK ry and MTK:n säätiö against the judgment delivered on 22 June 2006 in Case T-150/05 Markku Sahlstedt and Others v Commission of the European Communities | 13 |
| 2006/C 261/5 | Case C-363/06 P: Appeal brought on 6 September 2006 by Comunidad Autónoma de Valencia — Generalidad Valenciana against the order made on 5 July 2006 by the Court of First Instance (Second Chamber) in Case T-357/05 Comunidad Autónoma de Valencia — Generalidad Valenciana v Commission of the European Communities | 14 |
| 2006/C 261/6 | Case C-367/06: Action brought on 7 September 2006 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland | 15 |
| 2006/C 261/7 | Case C-369/06: Action brought on 8 September 2006 — Commission of the European Communities v Republic of Austria | 15 |
| 2006/C 261/8 | Case C-370/06: Action brought on 8 September 2006 — Commission of the European Communities v Portuguese Republic | 15 |
| 2006/C 261/9 | Case C-375/06: Action brought on 14 September 2006 — Commission of the European Communities v Portuguese Republic | 16 |
| 2006/C 261/0 | Case C-376/06: Action brought on 14 September 2006 — Commission of the European Communities v Portuguese Republic | 16 |
| 2006/C 261/1 | Case C-377/06: Action brought on 14 September 2006 — Commission of the European Communities v Republic of Finland | 17 |
| 2006/C 261/2 | Case C-378/06: Reference for a preliminary ruling from the Conseil d'Etat (Belgium) lodged on 15 September 2006 — Clear Channel Belgium S.A. v City of Liège | 17 |
| 2006/C 261/3 | Case C-381/06: Action brought on 15 September 2006 — Commission of the European Communities v Hellenic Republic | 17 |
| 2006/C 261/4 | Case C-388/06: Action brought on 20 September 2006 — Commission of the European Communities v French Republic | 18 |
| 2006/C 261/5 | Case C-389/06: Action brought on 20 September 2006 — Commission of the European Communities v Kingdom of Belgium | 18 |
| | COURT OF FIRST INSTANCE |
| 2006/C 261/6 | Assignment of Mr Wahl and Mr Prek to Chambers | 19 |
| 2006/C 261/7 | Case T-206/06: Action brought on 4 August 2006 — Total and Elf Aquitaine v Commission | 19 |
| 2006/C 261/8 | Case T-207/06: Action brought on 4 August 2006 — Europig v OHIM (EUROPIG) | 20 |
| 2006/C 261/9 | Case T-225/06: Action brought on 26 August 2006 — Budějovický Budvar v OHIM — Anheuser-Busch (BUD) | 20 |
| 2006/C 261/0 | Case T-230/06: Action brought on 29 August 2006 — REWE-Zentral v OHIM (Port Louis) | 21 |
| 2006/C 261/1 | Case T-231/06: Action brought on 30 August 2006 — Kingdom of the Netherlands v Commission | 21 |
| 2006/C 261/2 | Case T-232/06: Action brought on 28 August 2006 — Eyropaïki Dynamiki v Commission | 22 |
| 2006/C 261/3 | Case T-233/06: Action brought on 26 August 2006 — Casa Editorial El Tiempo v OHIM –Instituto Nacional de Meteorología (EL TIEMPO) | 23 |
| 2006/C 261/4 | Case T-234/06: Action brought on 4 September 2006 — Torresan v OHIM — Klosterbrauerei Weissenohe (CANNABIS) | 23 |
| 2006/C 261/5 | Case T-235/06: Action brought on 30 August 2006 — Austrian Relief Program v Commission | 24 |
| 2006/C 261/6 | Case T-236/06: Action brought on 1 September 2006 — Landtag Schleswig-Holstein v Commission | 24 |
| 2006/C 261/7 | Case T-241/06: Action brought on 7 September 2006 — Reitz and von Gadomski v OHIM (CMD-CLINIC) | 25 |
| 2006/C 261/8 | Case T-242/06: Action brought on 5 September 2006 — Cabrera Sánchez v OHIM — Industrias Cárnicas Valle (El charcutero artesano) | 25 |
| 2006/C 261/9 | Case T-245/06: Action brought on 4 September 2006 — Euro-Information v OHIM (CYBERGUICHET ) | 26 |
| 2006/C 261/0 | Case T-246/06: Action brought on 8 September 2006 — Redcats v OHIM — Revert & Cía (REVERIE) | 26 |
| 2006/C 261/1 | Case T-247/06 P: Appeal brought on 7 September 2006 by Carlos Sanchez Ferriz against the judgment of the Civil Service Tribunal delivered on 28 June 2006 in Case F-19/05 Sanchez Ferriz v Commission | 27 |
| 2006/C 261/2 | Case T-248/06: Action brought on 11 September 2006 — Professional Golfers' Association v OHIM — Ladies Professional Golf Association (LPGA) | 27 |
| 2006/C 261/3 | Case T-249/06: Action brought on 8 September 2006 — Niko Tube and Nyzhniodniprovskyi Tube Rolling Plant v Council | 28 |
| 2006/C 261/4 | Case T-254/06: Action brought on 15 September 2006 — Radio Regenbogen Hörfunk in Baden v OHIM (RadioCom) | 28 |
| 2006/C 261/5 | Case T-256/06: Action brought on 18 September 2006 — Neoperl Servisys v OHIM (HONEYCOMB) | 29 |
| 2006/C 261/6 | Case T-211/99: Order of the Court of First Instance of 5 September 2006 — Borrekuil v Commission | 29 |
| 2006/C 261/7 | Case T-215/99: Order of the Court of First Instance of 5 September 2006 — Autoservice Fermans Exclusive v Commission | 30 |
| 2006/C 261/8 | Case T-239/99: Order of the Court of First Instance of 5 September 2006 — Alofs v Commission | 30 |
| 2006/C 261/9 | Case T-249/99: Order of the Court of First Instance of 5 September 2006 — Jongste v Commission | 30 |
| 2006/C 261/0 | Case T-265/99: Order of the Court of First Instance of 5 September 2006 — Algemene service- en verkoopmaatschappij Arnhemse Poort v Commission | 30 |
| 2006/C 261/1 | Case T-13/00: Order of the Court of First Instance of 5 September 2006 — Baltussen and Others v Commission | 30 |
| 2006/C 261/2 | Case T-15/00: Order of the Court of First Instance of 5 September 2006 — Auto-en Carrosseriebedrij Ambting and Others v Commission | 30 |
| 2006/C 261/3 | Case T-361/04: Order of the Court of First Instance of 7 September 2006 — Austria v Commission | 31 |
| 2006/C 261/4 | Case T-45/05: Order of the Court of First Instance of 6 September 2006 — Micronas v OHIM (3D-Panorama) | 31 |
| | Criteria for the assignment of cases to chambers |
| 2006/C 261/5 | (2006/C ) | 32 |
| 2006/C 261/6 | Designation of the judge to replace the President of the Civil Service Tribunal for the purpose of dealing with applications for interim measures | 32 |
| 2006/C 261/7 | Case F-86/05: Judgment of the Civil Service Tribunal (First Chamber) of 12 September 2006 — De Soeten v Council (Pension — Request for early retirement without reduction of pension entitlement — Rejection of the request) | 32 |
| 2006/C 261/8 | Case F-22/06: Order of the Civil Service Tribunal of 19 September 2006 — Vienne and Others v Parliament (Refusal of assistance under Article 24 of the Staff Regulations — Transfer of pension rights acquired in Belgium — Inadmissibility) | 33 |
| 2006/C 261/9 | Case F-80/06: Action brought on 21 July 2006 — Duyster v Commission | 33 |
| 2006/C 261/0 | Case F-81/06: Action brought on 21 July 2006 — Duyster v Commission | 34 |
| 2006/C 261/1 | Case F-102/06: Action brought on 4 September 2006 — Haelterman and Others v Commission | 35 |
| 2006/C 261/2 | Case F-103/06: Action brought on 4 September 2006 — Blank and Others v Commission | 35 |
| 2006/C 261/3 | Case F-104/06: Action brought on 4 September 2006 — Arpaillange and Others v Commission | 35 |
| 2006/C 261/4 | Case F-107/06: Action brought on 15 September 2006 — Berrisford v Commission | 36 |
| 2006/C 261/5 | Case F-108/06: Action brought on 18 September 2006 — Diomede Basili v Commission | 37 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2006/C 261/1

Case C-88/03: Judgment of the Court (Grand Chamber) of 6 September 2006 — Portuguese Republic v Commission of the European Communities (Action for annulment — State aid — Decision 2003/442/EC — Tax measures adopted by a regional or local authority — Reductions on the rate of income tax for natural and legal persons having their tax residence in the Azores — Classification as State aid — Selective nature — Justification by the nature and overall structure of the tax system — Obligation to state reasons — Compatibility with the common market)

1

2006/C 261/2

Case C-180/04: Judgment of the Court (Second Chamber) of 7 September 2006 (reference for a preliminary ruling from the Tribunale di Genova — Italy) — Andrea Vassallo v Azienda Ospedaliera Ospedale San Martino di Genova e Cliniche Universitarie Convenzionate (Directive 1999/70/EC — Clauses 1(b) and 5 of the framework agreement on fixed-term work — Establishment of employment relationships of indefinite duration resulting from infringement of the rules governing successive fixed-term contracts — Possible derogation in respect of employment contracts in the public sector)

1

2006/C 261/3

Case C-193/04: Judgment of the Court (First Chamber) of 7 September 2006 (reference for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Fazenda Pública v Organon Portuguesa — Produtos Químicos e Farmacêuticos Lda (Indirect taxes on the raising of capital — Directive 69/335/EEC — Disposal of shares of a limited company)

2

2006/C 261/4

Case C-470/04: Judgment of the Court (First Chamber) of 7 September 2006 (reference for a preliminary ruling from the Gerechtshof te Arnhem (Netherlands)) — N v Inspecteur van de Belastingdienst Oost/kantoor Almelo (Freedom of movement for persons — Article 18 EC — Freedom of establishment — Article 43 EC — Direct taxation — Taxation of notional increases in value of substantial shareholdings where tax residence transferred to another Member State)

2

2006/C 261/5

Case C-484/04: Judgment of the Court (Third Chamber) of 7 September 2006 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Failure of a Member State to fulfil obligations — Social policy — Protection of the health and safety of workers — Directive 93/104/EC — Organisation of working time — Article 17(1) — Derogation — Articles 3 and 5 — Right to minimum daily and weekly rest periods)

3

2006/C 261/6

Case C-489/04: Judgment of the Court (Fourth Chamber) of 7 September 2006 (reference for a preliminary ruling from the Verwaltungsgericht Sigmaringen, Germany) — Alexander Jehle, Weinhaus Kiderlen v Land Baden-Württemberg (Regulation (EC) No 1019/2002 — First paragraph of Article 2 — Olive oil and olive-pomace oil — Marketing standards — Retail trade — Presentation to the final consumer — So-called bag in the box method)

4

2006/C 261/7

Case C-81/05: Judgment of the Court (First Chamber) of 7 September 2006 (reference for a preliminary ruling from the Tribunal Superior de Justicia de Castilla y León — Spain) — Anacleto Cordero Alonso v Fondo de Garantía Salarial (Fogasa) (Social policy — Protection of workers in the event of the insolvency of their employer — Directive 80/987/EEC — Amending Directive 2002/74/EC — Compensation for dismissal agreed during conciliation — Payment guaranteed by the guarantee institution — Payment subject to the adoption of a judicial decision)

4

2006/C 261/8

Case C-125/05: Judgment of the Court (Third Chamber) of 7 September 2006 (reference for a preliminary ruling from the Østre Landsret, Denmark) — VW-Audi Forhandlerforeningen, acting on behalf of Vulcan Silkeborg A/S v Skandinavisk Motor Co. A/S (Competition — Distribution agreement relating to motor vehicles — Block exemption — Regulation (EC) No 1475/95 — Article 5(3) — Termination by the supplier — Entry into force of Regulation (EC) No 1400/2002 — Requirement to reorganise the distribution network — Period of notice — Statement of reasons — Burden of proof)

5

2006/C 261/9

Case C-149/05: Judgment of the Court (First Chamber) of 7 September 2006 (reference for a preliminary ruling from the Cour d'appel de Paris (France)) — Harold Price v Conseil des ventes volontaires de meubles aux enchères publique (Directives 89/48/EEC and 92/51/EEC — Workers — Recognition of professional education and training — Requirement to undergo an aptitude test without the opportunity to choose an adaptation period — Voluntary sales of chattels by public auction)

6

2006/C 261/0

Case C-166/05: Judgment of the Court (Third Chamber) of 7 September 2006 (reference for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Heger Rudi GmbH v Finanzamt Graz-Stadt (Sixth VAT Directive — Place of supply for tax purposes — Article 9 — Supply of services connected with immovable property — Transmission of the fishing rights over a particular part of a stretch of water)

6

2006/C 261/1

Case C-287/06: Reference for a preliminary ruling from the Verwaltungsgericht Köln (Germany) lodged on 3 July 2006 — Deutsche Post AG v Bundesrepublik Deutschland, Third party: Marketing Service Magdeburg GmbH

7

2006/C 261/2

Case C-288/06: Reference for a preliminary ruling from the Verwaltungsgericht Köln (Germany) lodged on 3 July 2006 — Deutsche Post AG v Bundesrepublik Deutschland, Third party: Citipost Gesellschaft für Kurier- und Postdienstleistungen mbH Hannover

7

2006/C 261/3

Case C-289/06: Reference for a preliminary ruling from the Verwaltungsgericht Köln (Germany) lodged on 3 July 2006 — Magdeburger Dienstleistungs- und Verwaltungs GmbH (MDG) v Bundesrepublik Deutschland, Third party: Deutsche Post AG

7

2006/C 261/4

Case C-290/06: Reference for a preliminary ruling from the Verwaltungsgericht Köln (Germany) lodged on 3 July 2006 — Marketing Service Magdeburg GmbH v Bundesrepublik Deutschland, Third party: Deutsche Post AG

8

2006/C 261/5

Case C-291/06: Reference for a preliminary ruling from the Verwaltungsgericht Köln lodged on 3 July 2006 — Deutsche Post AG v Bundesrepublik Deutschland, Third Party: MDG Magdeburger Dienstleistungs- und Verwaltungs GmbH

8

2006/C 261/6

Case C-292/06: Reference for a preliminary ruling from the Verwaltungsgericht Köln lodged on 3 July 2006 — Vedat Deniz v Bundesrepublik Deutschland, Third Party: Deutsche Post AG

9

2006/C 261/7

Case C-308/06: Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) made on 14 July 2006 — The Queen on the application of The International Association of Independent Tanker Owners (Intertanko), The International Association of Dry Cargo Shipowners (Intercargo), The Greek Shipping Co-operation Committee, Lloyd's Register, The International Salvage Union v Secretary of State for Transport

9

2006/C 261/8

Case C-309/06: Reference for a preliminary ruling from House of Lords (United Kingdom) made on 17 July 2006 — Marks & Spencer plc v Her Majesty's Commissioners of Customs and Excise

10

2006/C 261/9

Case C-334/06: Reference for a preliminary ruling from the Verwaltungsgericht Chemnitz (Germany) lodged on 3 August 2006 — Matthias Zerche v Landkreis Mittweida

11

2006/C 261/0

Case C-335/06: Reference for a preliminary ruling from the Verwaltungsgericht Chemnitz (Germany) lodged on 3 August 2006 — Manfred Seuke v Landkreis Mittlerer Erzgebirgskreis

11

2006/C 261/1

Case C-336/06: Reference for a preliminary ruling from the Verwaltungsgericht Chemnitz (Germany) lodged on 3 August 2006 — Manfred Seuke v Landkreis Mittweida

11

2006/C 261/2

Case C-338/06: Action brought on 4 August 2006 — Commission of the European Communities v Kingdom of Spain

12

2006/C 261/3

Case C-344/06 P: Appeal brought on 8 August 2006 by J. C. Blom against the judgment of the Court of First Instance (Fifth Chamber) delivered on 30 May 2006 in Case T-87/94 J.C. Blom v Council of the European Union and Commission of the European Communities

13

2006/C 261/4

Case C-362/06P: Appeal brought on 4 September 2006 by Markku Sahlstedt, Juha Kankkunen, Mikko Tanner, Toini Tanner, Liisa Tanner, Eeva Jokinen, Aili Oksanen, Olli Tanner, Leena Tanner, Aila Puttonen, Risto Tanner, Tom Järvinen, Runo K. Kurko, Maa- ja metsätaloustuottajain keskusliitto MTK ry and MTK:n säätiö against the judgment delivered on 22 June 2006 in Case T-150/05 Markku Sahlstedt and Others v Commission of the European Communities

13

2006/C 261/5

Case C-363/06 P: Appeal brought on 6 September 2006 by Comunidad Autónoma de Valencia — Generalidad Valenciana against the order made on 5 July 2006 by the Court of First Instance (Second Chamber) in Case T-357/05 Comunidad Autónoma de Valencia — Generalidad Valenciana v Commission of the European Communities

14

2006/C 261/6

Case C-367/06: Action brought on 7 September 2006 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

15

2006/C 261/7

Case C-369/06: Action brought on 8 September 2006 — Commission of the European Communities v Republic of Austria

15

2006/C 261/8

Case C-370/06: Action brought on 8 September 2006 — Commission of the European Communities v Portuguese Republic

15

2006/C 261/9

Case C-375/06: Action brought on 14 September 2006 — Commission of the European Communities v Portuguese Republic

16

2006/C 261/0

Case C-376/06: Action brought on 14 September 2006 — Commission of the European Communities v Portuguese Republic

16

2006/C 261/1

Case C-377/06: Action brought on 14 September 2006 — Commission of the European Communities v Republic of Finland

17

2006/C 261/2

Case C-378/06: Reference for a preliminary ruling from the Conseil d'Etat (Belgium) lodged on 15 September 2006 — Clear Channel Belgium S.A. v City of Liège

17

2006/C 261/3

Case C-381/06: Action brought on 15 September 2006 — Commission of the European Communities v Hellenic Republic

17

2006/C 261/4

Case C-388/06: Action brought on 20 September 2006 — Commission of the European Communities v French Republic

18

2006/C 261/5

Case C-389/06: Action brought on 20 September 2006 — Commission of the European Communities v Kingdom of Belgium

18

COURT OF FIRST INSTANCE

2006/C 261/6

Assignment of Mr Wahl and Mr Prek to Chambers

19

2006/C 261/7

Case T-206/06: Action brought on 4 August 2006 — Total and Elf Aquitaine v Commission

19

2006/C 261/8

Case T-207/06: Action brought on 4 August 2006 — Europig v OHIM (EUROPIG)

20

2006/C 261/9

Case T-225/06: Action brought on 26 August 2006 — Budějovický Budvar v OHIM — Anheuser-Busch (BUD)

20

2006/C 261/0

Case T-230/06: Action brought on 29 August 2006 — REWE-Zentral v OHIM (Port Louis)

21

2006/C 261/1

Case T-231/06: Action brought on 30 August 2006 — Kingdom of the Netherlands v Commission

21

2006/C 261/2

Case T-232/06: Action brought on 28 August 2006 — Eyropaïki Dynamiki v Commission

22

2006/C 261/3

Case T-233/06: Action brought on 26 August 2006 — Casa Editorial El Tiempo v OHIM –Instituto Nacional de Meteorología (EL TIEMPO)

23

2006/C 261/4

Case T-234/06: Action brought on 4 September 2006 — Torresan v OHIM — Klosterbrauerei Weissenohe (CANNABIS)

23

2006/C 261/5

Case T-235/06: Action brought on 30 August 2006 — Austrian Relief Program v Commission

24

2006/C 261/6

Case T-236/06: Action brought on 1 September 2006 — Landtag Schleswig-Holstein v Commission

24

2006/C 261/7

Case T-241/06: Action brought on 7 September 2006 — Reitz and von Gadomski v OHIM (CMD-CLINIC)

25

2006/C 261/8

Case T-242/06: Action brought on 5 September 2006 — Cabrera Sánchez v OHIM — Industrias Cárnicas Valle (El charcutero artesano)

25

2006/C 261/9

Case T-245/06: Action brought on 4 September 2006 — Euro-Information v OHIM (CYBERGUICHET )

26

2006/C 261/0

Case T-246/06: Action brought on 8 September 2006 — Redcats v OHIM — Revert & Cía (REVERIE)

26

2006/C 261/1

Case T-247/06 P: Appeal brought on 7 September 2006 by Carlos Sanchez Ferriz against the judgment of the Civil Service Tribunal delivered on 28 June 2006 in Case F-19/05 Sanchez Ferriz v Commission

27

2006/C 261/2

Case T-248/06: Action brought on 11 September 2006 — Professional Golfers' Association v OHIM — Ladies Professional Golf Association (LPGA)

27

2006/C 261/3

Case T-249/06: Action brought on 8 September 2006 — Niko Tube and Nyzhniodniprovskyi Tube Rolling Plant v Council

28

2006/C 261/4

Case T-254/06: Action brought on 15 September 2006 — Radio Regenbogen Hörfunk in Baden v OHIM (RadioCom)

28

2006/C 261/5

Case T-256/06: Action brought on 18 September 2006 — Neoperl Servisys v OHIM (HONEYCOMB)

29

2006/C 261/6

Case T-211/99: Order of the Court of First Instance of 5 September 2006 — Borrekuil v Commission

29

2006/C 261/7

Case T-215/99: Order of the Court of First Instance of 5 September 2006 — Autoservice Fermans Exclusive v Commission

30

2006/C 261/8

Case T-239/99: Order of the Court of First Instance of 5 September 2006 — Alofs v Commission

30

2006/C 261/9

Case T-249/99: Order of the Court of First Instance of 5 September 2006 — Jongste v Commission

30

2006/C 261/0

Case T-265/99: Order of the Court of First Instance of 5 September 2006 — Algemene service- en verkoopmaatschappij Arnhemse Poort v Commission

30

2006/C 261/1

Case T-13/00: Order of the Court of First Instance of 5 September 2006 — Baltussen and Others v Commission

30

2006/C 261/2

Case T-15/00: Order of the Court of First Instance of 5 September 2006 — Auto-en Carrosseriebedrij Ambting and Others v Commission

30

2006/C 261/3

Case T-361/04: Order of the Court of First Instance of 7 September 2006 — Austria v Commission

31

2006/C 261/4

Case T-45/05: Order of the Court of First Instance of 6 September 2006 — Micronas v OHIM (3D-Panorama)

31

Criteria for the assignment of cases to chambers

2006/C 261/5

(2006/C )

32

2006/C 261/6

Designation of the judge to replace the President of the Civil Service Tribunal for the purpose of dealing with applications for interim measures

32

2006/C 261/7

Case F-86/05: Judgment of the Civil Service Tribunal (First Chamber) of 12 September 2006 — De Soeten v Council (Pension — Request for early retirement without reduction of pension entitlement — Rejection of the request)

32

2006/C 261/8

Case F-22/06: Order of the Civil Service Tribunal of 19 September 2006 — Vienne and Others v Parliament (Refusal of assistance under Article 24 of the Staff Regulations — Transfer of pension rights acquired in Belgium — Inadmissibility)

33

2006/C 261/9

Case F-80/06: Action brought on 21 July 2006 — Duyster v Commission

33

2006/C 261/0

Case F-81/06: Action brought on 21 July 2006 — Duyster v Commission

34

2006/C 261/1

Case F-102/06: Action brought on 4 September 2006 — Haelterman and Others v Commission

35

2006/C 261/2

Case F-103/06: Action brought on 4 September 2006 — Blank and Others v Commission

35

2006/C 261/3

Case F-104/06: Action brought on 4 September 2006 — Arpaillange and Others v Commission

35

2006/C 261/4

Case F-107/06: Action brought on 15 September 2006 — Berrisford v Commission

36

2006/C 261/5

Case F-108/06: Action brought on 18 September 2006 — Diomede Basili v Commission

37

| | III   Notices |
| --- | --- |
| 2006/C 261/6 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 249, 14.10.2006 | 38 |

III   Notices

2006/C 261/6

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 249, 14.10.2006

Official Journal of the European Union

38

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

EN

---

I Information

Court of Justice

COURT OF JUSTICE

| 28.10.2006 | EN | Official Journal of the European Union | C 261/1 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/1

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Judgment of the Court (Grand Chamber) of 6 September 2006 — Portuguese Republic v Commission of the European Communities

(Case C-88/03) (1)

(Action for annulment - State aid - Decision 2003/442/EC - Tax measures adopted by a regional or local authority - Reductions on the rate of income tax for natural and legal persons having their tax residence in the Azores - Classification as State aid - Selective nature - Justification by the nature and overall structure of the tax system - Obligation to state reasons - Compatibility with the common market)

(2006/C 261/01)

Language of the case: Portuguese

Parties

Applicant: Portuguese Republic (represented by: L. Fernandes, Agent, and J. da Cruz Vilaça and L. Romão, advogados)

Defendant: Commission of the European Communities (represented by: V. Di Bucci and F. de Sousa Fialho, Agents)

Interveners in support of the applicant: Kingdom of Spain (Agent: N. Díaz Abad), United Kingdom of Great Britain and Northern Ireland (R. Caudwell, Agent, and D. Anderson QC)

Re:

Annulment of Commission Decision C(2002) 4487 final in so far as it considers State aid incompatible with the common market the reduction of the rate of income tax for natural and legal persons having their tax residence on the Azores and pursuing certain financial activities (Section J, codes 65, 66 and 67 and Section K, code 74, of the Statistical Classification of Economic Activities in the European Community — NACE REV1.1)

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders the Portuguese Republic to pay the costs;

| 3. | Orders the United Kingdom of Great Britain and Northern Ireland and the Kingdom of Spain to bear their own costs. |
| --- | --- |

3.

Orders the United Kingdom of Great Britain and Northern Ireland and the Kingdom of Spain to bear their own costs.

---

(1)  OJ C 112, 10.5.2003.

---

| 28.10.2006 | EN | Official Journal of the European Union | C 261/1 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/1

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Judgment of the Court (Second Chamber) of 7 September 2006 (reference for a preliminary ruling from the Tribunale di Genova — Italy) — Andrea Vassallo v Azienda Ospedaliera Ospedale San Martino di Genova e Cliniche Universitarie Convenzionate

(Case C-180/04) (1)

(Directive 1999/70/EC - Clauses 1(b) and 5 of the framework agreement on fixed-term work - Establishment of employment relationships of indefinite duration resulting from infringement of the rules governing successive fixed-term contracts - Possible derogation in respect of employment contracts in the public sector)

(2006/C 261/02)

Language of the case: Italian

Referring court

Tribunale di Genova

Parties to the main proceedings

Applicant: Andrea Vassallo

Defendant: Azienda Ospedaliera Ospedale San Martino di Genova e Cliniche Universitarie Convenzionate

Re:

Reference for a preliminary ruling — Tribunale di Genova — Interpretation of Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43) — Establishment of employment relationships of indefinite duration resulting from infringement of the rules governing successive fixed-term contracts — Possible derogation in respect of employment contracts in the public sector

Operative part of the judgment

The framework agreement on fixed-term work concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as not in principle precluding national legislation which, where there is abuse arising from the use of successive fixed-term employment contracts or relationships by a public-sector employer, precludes their being converted into contracts of indeterminate duration, even though such conversion is provided for in respect of employment contracts and relationships with a private-sector employer, where that legislation includes another effective measure to prevent and, where relevant, punish the abuse of successive fixed-term contracts by a public-sector employer.

---

(1)  OJ C 156, 12.6.2004.

---

| 28.10.2006 | EN | Official Journal of the European Union | C 261/2 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/2

---

Judgment of the Court (First Chamber) of 7 September 2006 (reference for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Fazenda Pública v Organon Portuguesa — Produtos Químicos e Farmacêuticos Lda

(Case C-193/04) (1)

(Indirect taxes on the raising of capital - Directive 69/335/EEC - Disposal of shares of a limited company)

(2006/C 261/03)

Language of the case: Portuguese

Referring court

Supremo Tribunal Administrativo — Portugal

Parties to the main proceedings

Appellant: Fazenda Pública

Respondent: Organon Portuguesa — Produtos Químicos e Farmacêuticos Lda

Re:

Reference for a preliminary ruling — Supremo Tribunal Administrativo — Interpretation of Articles 4(3), 10(c) and 12(1)(e) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition, 1969(II), p. 412), as amended by Council Directive 85/303/EEC of 10 June 1985 (OJ 1985 L 156, p. 23) — Compatibility with those provisions of fees payable for the drawing-up of a notarially attested share transfer

Operative part of the judgment

Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, does not preclude national legislation which provides, in respect of the drawing-up of a notarial act recording a disposal of shares which is not linked to an increase in capital, for the charging of fees which are fixed by reference to a flat rate and/or the value of the shares being disposed of.

---

(1)  OJ C 156, 12.6.2004.

---

| 28.10.2006 | EN | Official Journal of the European Union | C 261/2 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/2

---

Judgment of the Court (First Chamber) of 7 September 2006 (reference for a preliminary ruling from the Gerechtshof te Arnhem (Netherlands)) — N v Inspecteur van de Belastingdienst Oost/kantoor Almelo

(Case C-470/04) (1)

(Freedom of movement for persons - Article 18 EC - Freedom of establishment - Article 43 EC - Direct taxation - Taxation of notional increases in value of substantial shareholdings where tax residence transferred to another Member State)

(2006/C 261/04)

Language of the case: Dutch

Referring court

Gerechtshof te Arnhem (Netherlands)

Parties to the main proceedings

Applicant: N

Defendant: Inspecteur van de Belastingdienst Oost/kantoor Almelo

Re:

Reference for a preliminary ruling from the Gerechtshof te Arnhem — Free movement of persons — Freedom of establishment — Tax charge resulting from the transfer of residence to another Member State — Pursuit of an economic activity in the latter state — Income tax on the basis of deemed profit from the sale of a substantial shareholding in a company — Provision of a guarantee in order to obtain deferment of payment — Articles 18 EC and 43 EC

Operative part of the judgment

The Court:

| 1. | A Community national, such as the applicant in the main proceedings, who has been living in one Member State since the transfer of his residence and who holds all the shares of companies established in another Member State, may rely on Article 43 EC. |
| --- | --- |

1.

A Community national, such as the applicant in the main proceedings, who has been living in one Member State since the transfer of his residence and who holds all the shares of companies established in another Member State, may rely on Article 43 EC.

| 2. | Article 43 EC must be interpreted as precluding a Member State from establishing a system for taxing increases in value in the case of a taxpayer's transferring his residence outside that Member State, such as the system at issue in the main proceedings, which makes the granting of deferment of the payment of that tax conditional on the provision of guarantees and does not take full account of reductions in value capable of arising after the transfer of residence by the person concerned and which were not taken into account by the host Member State. |
| --- | --- |

2.

Article 43 EC must be interpreted as precluding a Member State from establishing a system for taxing increases in value in the case of a taxpayer's transferring his residence outside that Member State, such as the system at issue in the main proceedings, which makes the granting of deferment of the payment of that tax conditional on the provision of guarantees and does not take full account of reductions in value capable of arising after the transfer of residence by the person concerned and which were not taken into account by the host Member State.

| 3. | An obstacle arising from a requirement, in breach of Community law, that a guarantee be constituted cannot be raised with retroactive effect merely by releasing that guarantee. The form of the document on the basis of which the guarantee was released is immaterial to that assessment. Where a Member State makes provision for the payment of interest on arrears where a guarantee demanded in breach of national law is released, such interest is also due in the case of an infringement of Community law. Moreover, it is for the national court to assess, in accordance with the guidelines provided by the Court of Justice and in compliance with the principles of equivalence and effectiveness, whether the Member State is liable on account of the damage caused by the obligation to constitute such a guarantee. |
| --- | --- |

3.

An obstacle arising from a requirement, in breach of Community law, that a guarantee be constituted cannot be raised with retroactive effect merely by releasing that guarantee. The form of the document on the basis of which the guarantee was released is immaterial to that assessment. Where a Member State makes provision for the payment of interest on arrears where a guarantee demanded in breach of national law is released, such interest is also due in the case of an infringement of Community law. Moreover, it is for the national court to assess, in accordance with the guidelines provided by the Court of Justice and in compliance with the principles of equivalence and effectiveness, whether the Member State is liable on account of the damage caused by the obligation to constitute such a guarantee.

---

(1)  OJ C 31, 05.02.2005.

---

| 28.10.2006 | EN | Official Journal of the European Union | C 261/3 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/3

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Judgment of the Court (Third Chamber) of 7 September 2006 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

(Case C-484/04) (1)

(Failure of a Member State to fulfil obligations - Social policy - Protection of the health and safety of workers - Directive 93/104/EC - Organisation of working time - Article 17(1) - Derogation - Articles 3 and 5 - Right to minimum daily and weekly rest periods)

(2006/C 261/05)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and N. Yerrell, Agents)

Defendant: United Kingdom of Great Britain and Northern Ireland (represented by: M. Bethell and E. O'Neill, Agents, and K. Smith, Barrister)

Re:

Failure by a Member State to fulfil obligations — Breach of Article 17(1) of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18) — Scope of the derogation — Implementation of provisions relating to rest periods

Operative part of the judgment

The Court:

| 1. | Declares that, by applying the derogation provided for in Article 17(1) of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time, as amended by Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000, to workers whose working time is partially not measured or predetermined or can be determined partially by the worker himself and by failing to adopt the measures necessary to implement the rights of workers to daily and weekly rest, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Articles 17(1), 3 and 5 of that directive; |
| --- | --- |

1.

Declares that, by applying the derogation provided for in Article 17(1) of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time, as amended by Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000, to workers whose working time is partially not measured or predetermined or can be determined partially by the worker himself and by failing to adopt the measures necessary to implement the rights of workers to daily and weekly rest, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Articles 17(1), 3 and 5 of that directive;

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

2.

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

---

(1)  OJ C 31, 5. 2. 2005.

---

| 28.10.2006 | EN | Official Journal of the European Union | C 261/4 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/4

---

Judgment of the Court (Fourth Chamber) of 7 September 2006 (reference for a preliminary ruling from the Verwaltungsgericht Sigmaringen, Germany) — Alexander Jehle, Weinhaus Kiderlen v Land Baden-Württemberg

(Case C-489/04) (1)

(Regulation (EC) No 1019/2002 - First paragraph of Article 2 - Olive oil and olive-pomace oil - Marketing standards - Retail trade - Presentation to the final consumer - So-called ‘bag in the box’ method)

(2006/C 261/06)

Language of the case: German

Referring court

Verwaltungsgericht Sigmaringen

Parties to the main proceedings

Applicants: Alexander Jehle, Weinhaus Kiderlen

Defendant: Land Baden-Württemberg

Re:

Preliminary ruling — Verwaltungsgericht Sigmaringen — Interpretation of the first paragraph of Article 2 of Commission Regulation (EC) No 1019/2002 of 13 June 2002 on marketing standards for olive oil (OJ 2002 L 155, p. 27) — Presentation of olive oils and olive-pomace oils to final consumers in pre-sealed packaging having a maximum capacity of five litres — Possibility of selling olive oil which is presented in a five-litre ‘Bag in the Box’ and which consumers draw off in smaller amounts within the shop

Operative part of the judgment

| 1. | Commission Regulation (EC) No 1019/2002 of 13 June 2002 on marketing standards for olive oil, as amended by Commission Regulation (EC) No 1176/2003 of 1 July 2003, and in particular the first paragraph of Article 2 thereof, must be construed as meaning that olive oils and olive-pomace oils may be presented to the final consumer only in packaging which complies with the requirements laid down by that provision. |
| --- | --- |

1.

Commission Regulation (EC) No 1019/2002 of 13 June 2002 on marketing standards for olive oil, as amended by Commission Regulation (EC) No 1176/2003 of 1 July 2003, and in particular the first paragraph of Article 2 thereof, must be construed as meaning that olive oils and olive-pomace oils may be presented to the final consumer only in packaging which complies with the requirements laid down by that provision.

| 2. | The first paragraph of Article 2 of Regulation No 1019/2002, as amended by Regulation (EC) No 1176/2003, must be construed as prohibiting a method of marketing, such as that used by the applicant in the main proceedings, which does not meet the conditions laid down by that provision. |
| --- | --- |

2.

The first paragraph of Article 2 of Regulation No 1019/2002, as amended by Regulation (EC) No 1176/2003, must be construed as prohibiting a method of marketing, such as that used by the applicant in the main proceedings, which does not meet the conditions laid down by that provision.

---

(1)  OJ C 45, 19.2.2005.

---

| 28.10.2006 | EN | Official Journal of the European Union | C 261/4 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/4

---

Judgment of the Court (First Chamber) of 7 September 2006 (reference for a preliminary ruling from the Tribunal Superior de Justicia de Castilla y León — Spain) — Anacleto Cordero Alonso v Fondo de Garantía Salarial (Fogasa)

(Case C-81/05) (1)

(Social policy - Protection of workers in the event of the insolvency of their employer - Directive 80/987/EEC - Amending Directive 2002/74/EC - Compensation for dismissal agreed during conciliation - Payment guaranteed by the guarantee institution - Payment subject to the adoption of a judicial decision)

(2006/C 261/07)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Castilla y León

Parties to the main proceedings

Applicant: Anacleto Cordero Alonso

Defendant: Fondo de Garantía Salarial (Fogasa)

Re:

Reference for a preliminary ruling — Tribunal Superior de Justicia de Castilla y León — Interpretation of Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer (OJ 1980 L 283, p. 23), amended by Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002 (OJ 2002 L 270, p. 10) — Articles 1 and 3 — Application of Community law — Primacy — Protection of workers already conferred by national law — Time-limit for transposing the relevant directive not yet expired — Interpretation by the Court of Justice not the same as that by the Spanish Constitutional Court — Equal treatment

Operative part of the judgment

The Court:

| 1. | Where, before the entry into force of Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002 amending Directive 80/987/EEC, a Member State has already conferred on employees a statutory entitlement to protection by a guarantee institution in the event of an employer's insolvency with regard to compensation for termination of the contract of employment, the application of that legislation to cases where the employer's insolvency occurred after the entry into force of that directive falls within the scope of Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer, as amended by Directive 2002/74. |
| --- | --- |

1.

Where, before the entry into force of Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002 amending Directive 80/987/EEC, a Member State has already conferred on employees a statutory entitlement to protection by a guarantee institution in the event of an employer's insolvency with regard to compensation for termination of the contract of employment, the application of that legislation to cases where the employer's insolvency occurred after the entry into force of that directive falls within the scope of Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer, as amended by Directive 2002/74.

| 2. | Within the scope of Directive 80/987, as amended, the general principle of equality, as recognised in the Community legal order, requires that when, under national rules such as those at issue in the main proceedings, statutory compensation payable on termination of an employment contract and fixed in a judgment is payable by a guarantee institution in the event of an employer's insolvency, compensation of the same nature, fixed in an agreement between the employee and the employer which was entered into under the supervision and with the approval of a court, must be treated in the same way. |
| --- | --- |

2.

Within the scope of Directive 80/987, as amended, the general principle of equality, as recognised in the Community legal order, requires that when, under national rules such as those at issue in the main proceedings, statutory compensation payable on termination of an employment contract and fixed in a judgment is payable by a guarantee institution in the event of an employer's insolvency, compensation of the same nature, fixed in an agreement between the employee and the employer which was entered into under the supervision and with the approval of a court, must be treated in the same way.

| 3. | The national court must disapply a national rule which, in breach of the principle of equality as recognised in the Community legal order, precludes the payment by the competent guarantee institution of compensation on termination of a contract fixed in an agreement between the employee and the employer which was entered into under the supervision of and with the approval of a court. |
| --- | --- |

3.

The national court must disapply a national rule which, in breach of the principle of equality as recognised in the Community legal order, precludes the payment by the competent guarantee institution of compensation on termination of a contract fixed in an agreement between the employee and the employer which was entered into under the supervision of and with the approval of a court.

---

(1)  OJ C 93, 16.4.2005.

---

| 28.10.2006 | EN | Official Journal of the European Union | C 261/5 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/5

---

Judgment of the Court (Third Chamber) of 7 September 2006 (reference for a preliminary ruling from the Østre Landsret, Denmark) — VW-Audi Forhandlerforeningen, acting on behalf of Vulcan Silkeborg A/S v Skandinavisk Motor Co. A/S

(Case C-125/05) (1)

(Competition - Distribution agreement relating to motor vehicles - Block exemption - Regulation (EC) No 1475/95 - Article 5(3) - Termination by the supplier - Entry into force of Regulation (EC) No 1400/2002 - Requirement to reorganise the distribution network - Period of notice - Statement of reasons - Burden of proof)

(2006/C 261/08)

Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: VW-Audi Forhandlerforeningen, acting on behalf of Vulcan Silkeborg A/S

Defendant: Skandinavisk Motor Co. A/S

Re:

Reference for a preliminary ruling — Østre Landsret — Interpretation of Article 5(3) of Commission Regulation (EC) No 1475/95 of 28 June 1995 on the application of Article 85(3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements (OJ 1995 L 145, p. 25) — Termination of the agreement by the supplier in a case where it is necessary to reorganise the whole or a substantial part of the network — Obligation to state reasons and extent of such an obligation

Operative part of the judgment

The Court rules:

The first indent of Article 5(3) of Commission Regulation (EC) No 1475/95 of 28 June 1995 on the application of Article [81](3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements is to be interpreted as meaning that:

| — | in order for it to be ‘necessary to reorganise the whole or a substantial part of the network’ there must be a significant change, both substantively and geographically, to the distribution structures of the supplier concerned, which must be convincingly justified on grounds of economic effectiveness based on objective circumstances internal or external to the supplier's undertaking which, failing a swift reorganisation of the distribution network, would be liable, having regard to the competitive environment in which the supplier carries on business, to prejudice the effectiveness of the existing structures of the network. Any adverse economic consequences which would be liable to affect a supplier in the event that it were to terminate the distribution agreement with a two years' notice period are relevant in that regard. It is for the national courts and arbitrators to determine, having regard to all the evidence in the case before them, whether those conditions are satisfied. |
| --- | --- |

—

in order for it to be ‘necessary to reorganise the whole or a substantial part of the network’ there must be a significant change, both substantively and geographically, to the distribution structures of the supplier concerned, which must be convincingly justified on grounds of economic effectiveness based on objective circumstances internal or external to the supplier's undertaking which, failing a swift reorganisation of the distribution network, would be liable, having regard to the competitive environment in which the supplier carries on business, to prejudice the effectiveness of the existing structures of the network. Any adverse economic consequences which would be liable to affect a supplier in the event that it were to terminate the distribution agreement with a two years' notice period are relevant in that regard. It is for the national courts and arbitrators to determine, having regard to all the evidence in the case before them, whether those conditions are satisfied.

| — | where the validity of a termination with one year's notice is challenged before the national courts or arbitrators, it is for the supplier to prove that the conditions laid down under that provision for the exercise of the right to terminate on one year's notice are satisfied. The procedure for establishing such proof is a matter for national law. |
| --- | --- |

—

where the validity of a termination with one year's notice is challenged before the national courts or arbitrators, it is for the supplier to prove that the conditions laid down under that provision for the exercise of the right to terminate on one year's notice are satisfied. The procedure for establishing such proof is a matter for national law.

| — | it does not require a supplier which terminates a distribution agreement pursuant to that provision to provide a formal statement of the reasons for the decision to terminate nor does it require the supplier to draw up a reorganisation plan prior to taking such a decision. |
| --- | --- |

—

it does not require a supplier which terminates a distribution agreement pursuant to that provision to provide a formal statement of the reasons for the decision to terminate nor does it require the supplier to draw up a reorganisation plan prior to taking such a decision.

| — | the entry into force of Commission Regulation (EC) No 1400/2002 of 31 July 2002 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector did not, of itself, require the reorganisation of the distribution network of a supplier within the meaning of the first indent of Article 5(3) of Regulation No 1475/95. However, that entry into force may, in the light of the particular nature of the distribution network of each supplier, have required changes that were so significant that they must be truly considered as representing a reorganisation within the meaning of that provision. It is for the national courts or arbitrators to determine, in the light of all the evidence in the case before them, whether that is the position. |
| --- | --- |

—

the entry into force of Commission Regulation (EC) No 1400/2002 of 31 July 2002 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicle sector did not, of itself, require the reorganisation of the distribution network of a supplier within the meaning of the first indent of Article 5(3) of Regulation No 1475/95. However, that entry into force may, in the light of the particular nature of the distribution network of each supplier, have required changes that were so significant that they must be truly considered as representing a reorganisation within the meaning of that provision. It is for the national courts or arbitrators to determine, in the light of all the evidence in the case before them, whether that is the position.

---

(1)  OJ C 143, 11.6.2005.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/6 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/6

---

Judgment of the Court (First Chamber) of 7 September 2006 (reference for a preliminary ruling from the Cour d'appel de Paris (France)) — Harold Price v Conseil des ventes volontaires de meubles aux enchères publique

(Case C-149/05) (1)

(Directives 89/48/EEC and 92/51/EEC - Workers - Recognition of professional education and training - Requirement to undergo an aptitude test without the opportunity to choose an adaptation period - Voluntary sales of chattels by public auction)

(2006/C 261/09)

Language of the case: French

Referring court

Cour d'appel de Paris (France)

Parties to the main proceedings

Applicant: Harold Price

Defendant: Conseil des ventes volontaires de meubles aux enchères publique

Re:

Reference for a preliminary ruling — Cour d'appel, Paris — Interpretation of Article 4 of Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC (OJ L 209 p. 25) — Activity of director of voluntary sales of chattels by public auction — Requirement to take an aptitude test without the possibility of choosing an adaptation period

Operative part of the judgment

| 1. | Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC, as amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001, does not apply to an applicant relying on qualifications such as those relied on by the applicant in the main proceedings who wishes to pursue the profession of director of voluntary sales of chattels by public auction in France.
  However, Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration, as amended by Directive 2001/19, and in particular point (b) of the first subparagraph of Article 3 thereof, may apply to such an applicant if the profession of director of voluntary sales of chattels by public auction in the Member State in which the applicant acquired the qualifications on which he relies is not a regulated profession within the meaning of Article 1(c) of that directive. It is for the national court to determine, if necessary, whether that is the case. |
| --- | --- |

1.

Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC, as amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001, does not apply to an applicant relying on qualifications such as those relied on by the applicant in the main proceedings who wishes to pursue the profession of director of voluntary sales of chattels by public auction in France.

However, Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration, as amended by Directive 2001/19, and in particular point (b) of the first subparagraph of Article 3 thereof, may apply to such an applicant if the profession of director of voluntary sales of chattels by public auction in the Member State in which the applicant acquired the qualifications on which he relies is not a regulated profession within the meaning of Article 1(c) of that directive. It is for the national court to determine, if necessary, whether that is the case.

| 2. | A profession access to which requires a diploma in law awarded on completion of studies of at least two years' duration is a profession the practice of which, it can be assumed, requires a precise knowledge of national law within the meaning of the third subparagraph of Article 4(1) of Directive 89/48, as amended by Directive 2001/19.
  For that provision to apply, it is not necessary for the activity in question to involve the provision of advice and/or assistance concerning all national law; it is sufficient that it concerns a specialised area and is an essential and constant element of that activity. In that context, reference should be made in particular to normal practice of the relevant profession. |
| --- | --- |

2.

A profession access to which requires a diploma in law awarded on completion of studies of at least two years' duration is a profession the practice of which, it can be assumed, requires a precise knowledge of national law within the meaning of the third subparagraph of Article 4(1) of Directive 89/48, as amended by Directive 2001/19.

For that provision to apply, it is not necessary for the activity in question to involve the provision of advice and/or assistance concerning all national law; it is sufficient that it concerns a specialised area and is an essential and constant element of that activity. In that context, reference should be made in particular to normal practice of the relevant profession.

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(1)  OJ C 132, 28.05.2005.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/6 |
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Judgment of the Court (Third Chamber) of 7 September 2006 (reference for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Heger Rudi GmbH v Finanzamt Graz-Stadt

(Case C-166/05) (1)

(Sixth VAT Directive - Place of supply for tax purposes - Article 9 - Supply of services connected with immovable property - Transmission of the fishing rights over a particular part of a stretch of water)

(2006/C 261/10)

Language of the case: German

Referring court

Verwaltungsgerichtshof — Austria

Parties to the main proceedings

Applicant: Heger Rudi GmbH

Defendant: Finanzamt Graz-Stadt

Re:

Request for a preliminary ruling — Verwaltungsgerichtshof (Higher Administrative Court, Austria) — Interpretation of Article 9(2)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Determination of place of supply for tax purposes — Concept of supply of services connected with immoveable property — Transmission for valuable consideration of the fishing rights over a particular part of a river

Operative part of the judgment

The transmission of the right to fish by means of a transfer of fishing permits for valuable consideration constitutes a supply of services connected with immovable property within the meaning of Article 9(2)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment.

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(1)  OJ C 143, 11.06.2005.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/7 |
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Reference for a preliminary ruling from the Verwaltungsgericht Köln (Germany) lodged on 3 July 2006 — Deutsche Post AG v Bundesrepublik Deutschland, Third party: Marketing Service Magdeburg GmbH

(Case C-287/06)

(2006/C 261/11)

Language of the case: German

Referring court

Verwaltungsgericht Köln

Parties to the main proceedings

Applicant: Deutsche Post AG

Defendant: Bundesrepublik Deutschland

Third party: Marketing Service Magdeburg GmbH

Question referred

Is Article 47(2), in conjunction with Article 95 EC, the fifth indent of Article 12, and Article 7(1) of Directive 97/67/EC, in the version as amended by Directive 2002/39/EC of the European Parliament and of the Council (1), to be interpreted as meaning that, where a universal service provider applies special tariffs for business customers who give postal items to the sorting office pre-sorted for the postal network, that universal service provider is obliged to apply those special tariffs also to undertakings which collect postal items from the sender and give them pre-sorted for the postal network at the same access point and on the same terms and conditions as business customers, without the universal service provider being permitted to refuse to do so, having regard to its obligation to provide a universal service?

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(1)  OJ 2002 L 176, p. 21.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/7 |
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Reference for a preliminary ruling from the Verwaltungsgericht Köln (Germany) lodged on 3 July 2006 — Deutsche Post AG v Bundesrepublik Deutschland, Third party: Citipost Gesellschaft für Kurier- und Postdienstleistungen mbH Hannover

(Case C-288/06)

(2006/C 261/12)

Language of the case: German

Referring court

Verwaltungsgericht Köln

Parties to the main proceedings

Applicant: Deutsche Post AG

Defendant: Bundesrepublik Deutschland

Third party: Citipost Gesellschaft für Kurier- und Postdienstleistungen mbH Hannover

Question referred

Is Article 47(2), in conjunction with Article 95 EC, the fifth indent of Article 12, and Article 7(1) of Directive 97/67/EC, in the version as amended by Directive 2002/39/EC of the European Parliament and of the Council (1), to be interpreted as meaning that, where a universal service provider applies special tariffs for business customers who give postal items to the sorting office pre-sorted for the postal network, that universal service provider is obliged to apply those special tariffs also to undertakings which collect postal items from the sender and give them pre-sorted for the postal network at the same access point and on the same terms and conditions as business customers, without the universal service provider being permitted to refuse to do so, having regard to its obligation to provide a universal service?

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(1)  OJ 2002 L 176, p. 21.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/7 |
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Reference for a preliminary ruling from the Verwaltungsgericht Köln (Germany) lodged on 3 July 2006 — Magdeburger Dienstleistungs- und Verwaltungs GmbH (MDG) v Bundesrepublik Deutschland, Third party: Deutsche Post AG

(Case C-289/06)

(2006/C 261/13)

Language of the case: German

Referring court

Verwaltungsgericht Köln

Parties to the main proceedings

Applicant: Magdeburger Dienstleistungs- und Verwaltungs GmbH (MDG)

Defendant: Bundesrepublik Deutschland

Third party: Deutsche Post AG

Question referred

Is Article 47(2), in conjunction with Article 95 EC, the fifth indent of Article 12, and Article 7(1) of Directive 97/67/EC, in the version as amended by Directive 2002/39/EC of the European Parliament and of the Council (1), to be interpreted as meaning that, where a universal service provider applies special tariffs for business customers who give postal items to the sorting office pre-sorted for the postal network, that universal service provider is obliged to apply those special tariffs also to undertakings which collect postal items from the sender and give them pre-sorted for the postal network at the same access point and on the same terms and conditions as business customers, without the universal service provider being permitted to refuse to do so, having regard to its obligation to provide a universal service?

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(1)  OJ 2002 L 176, p. 21.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/8 |
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Reference for a preliminary ruling from the Verwaltungsgericht Köln (Germany) lodged on 3 July 2006 — Marketing Service Magdeburg GmbH v Bundesrepublik Deutschland, Third party: Deutsche Post AG

(Case C-290/06)

(2006/C 261/14)

Language of the case: German

Referring court

Verwaltungsgericht Köln

Parties to the main proceedings

Applicant: Marketing Service Magdeburg GmbH

Defendant: Bundesrepublik Deutschland

Third party: Deutsche Post AG

Question referred

Is Article 47(2), in conjunction with Article 95 EC, the fifth indent of Article 12, and Article 7(1) of Directive 97/67/EC, in the version as amended by Directive 2002/39/EC of the European Parliament and of the Council (1), to be interpreted as meaning that, where a universal service provider applies special tariffs for business customers who give postal items to the sorting office pre-sorted for the postal network, that universal service provider is obliged to apply those special tariffs also to undertakings which collect postal items from the sender and give them pre-sorted for the postal network at the same access point and on the same terms and conditions as business customers, without the universal service provider being permitted to refuse to do so, having regard to its obligation to provide a universal service?

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(1)  OJ L 176, p. 21.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/8 |
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Reference for a preliminary ruling from the Verwaltungsgericht Köln lodged on 3 July 2006 — Deutsche Post AG v Bundesrepublik Deutschland, Third Party: MDG Magdeburger Dienstleistungs- und Verwaltungs GmbH

(Case C-291/06)

(2006/C 261/15)

Language of the case: German

Referring court

Verwaltungsgericht Köln

Parties to the main proceedings

Applicant: Deutsche Post AG

Defendant: Bundesrepublik Deutschland

Third party: MDG Magdeburger Dienstleistungs- und Verwaltungs GmbH

Question referred

Is Article 47(2), in conjunction with Article 95 EC, the fifth indent of Article 12, and Article 7(1) of Directive 97/67/EC, in the version amended by Directive 2002/39/EC of the European Parliament and of the Council of 10 June 2002 (1), to be interpreted as meaning that, where a universal service provider applies special tariffs for business customers who give postal items to the sorting office pre-sorted for the postal network, that universal service provider is obliged to apply those special tariffs also to undertakings which collect postal items from the sender and give them pre-sorted for the postal network at the same access point and on the same terms and conditions as business customers, without the universal service provider being permitted to refuse to do so, having regard to its obligation to provide a universal service?

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(1)  OJ 2002 L 176, p. 21.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/9 |
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C 261/9

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Reference for a preliminary ruling from the Verwaltungsgericht Köln lodged on 3 July 2006 — Vedat Deniz v Bundesrepublik Deutschland, Third Party: Deutsche Post AG

(Case C-292/06)

(2006/C 261/16)

Language of the case: German

Referring court

Verwaltungsgericht Köln

Parties to the main proceedings

Applicant: Mr Vedat Deniz

Defendant: Bundesrepublik Deutschland

Third Party: Deutsche Post AG

Question referred

Is Article 47(2), in conjunction with Article 95 EC, the fifth indent of Article 12, and Article 7(1) of Directive 97/67/EC, in the version amended by Directive 2002/39/EC of the European Parliament and of the Council of 10 June 2002 (1), to be interpreted as meaning that, where a universal service provider applies special tariffs for business customers who give postal items to the sorting office pre-sorted for the postal network, that universal service provider is obliged to apply those special tariffs also to undertakings which collect postal items from the sender and give them pre-sorted for the postal network at the same access point and on the same terms and conditions as business customers, without the universal service provider being permitted to refuse to do so, having regard to its obligation to provide a universal service?

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(1)  OJ 2002 L 176, p. 21.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/9 |
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Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) made on 14 July 2006 — The Queen on the application of The International Association of Independent Tanker Owners (Intertanko), The International Association of Dry Cargo Shipowners (Intercargo), The Greek Shipping Co-operation Committee, Lloyd's Register, The International Salvage Union v Secretary of State for Transport

(Case C-308/06)

(2006/C 261/17)

Language of the case: English

Referring court

High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court)

Parties to the main proceedings

Applicants: The International Association of Independent Tanker (Intertanko), The International Association of Dry Cargo Shipowners (Intercargo), The Greek Shipping Co-operation Committee, Lloyd's Register, The International Salvage Union

Defendant: Secretary of State for Transport

Questions referred

| 1. | In relation to straits used for international navigation, the Exclusive Economic Zone or equivalent zone of a member state and the high seas, is article 5(2) of Directive 2005/35/EC (1) invalid insofar as it limits the exceptions in Annex I regulation 11(b) of MARPOL 73/78 and in Annex II regulation (6)(b) of MARPOL 73/78 to the owners, masters and crew? |
| --- | --- |

1.

In relation to straits used for international navigation, the Exclusive Economic Zone or equivalent zone of a member state and the high seas, is article 5(2) of Directive 2005/35/EC (1) invalid insofar as it limits the exceptions in Annex I regulation 11(b) of MARPOL 73/78 and in Annex II regulation (6)(b) of MARPOL 73/78 to the owners, masters and crew?

| 2. | In relation to the territorial sea of a member state:






  a. | Is article 4 of the Directive invalid insofar as it requires member states to treat serious negligence as a test of liability for discharge of polluting substances; and/or |
| --- | --- | --- |

2.

In relation to the territorial sea of a member state:

a.

Is article 4 of the Directive invalid insofar as it requires member states to treat serious negligence as a test of liability for discharge of polluting substances; and/or

| b. | Is article 5(1) of the Directive invalid insofar as it excludes the application of the exceptions in Annex I regulation 11(b) of MARPOL 73/78 and in Annex II regulation (6)(b) of MARPOL 73/78? |
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b.

Is article 5(1) of the Directive invalid insofar as it excludes the application of the exceptions in Annex I regulation 11(b) of MARPOL 73/78 and in Annex II regulation (6)(b) of MARPOL 73/78?

| 3. | Does article 4 of the Directive, requiring member states to adopt national legislation which includes serious negligence as a standard of liability and which penalises discharges in territorial sea, breach the right of innocent passage recognised in the United Nations Convention on the Law of the Sea, and if so, is article 4 invalid to that extent? |
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3.

Does article 4 of the Directive, requiring member states to adopt national legislation which includes serious negligence as a standard of liability and which penalises discharges in territorial sea, breach the right of innocent passage recognised in the United Nations Convention on the Law of the Sea, and if so, is article 4 invalid to that extent?

| 4. | Does the use of the phrase ‘serious negligence’ in article 4 of the Directive infringe the principle of legal certainty, and if so, is article 4 invalid to that extent? |
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4.

Does the use of the phrase ‘serious negligence’ in article 4 of the Directive infringe the principle of legal certainty, and if so, is article 4 invalid to that extent?

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(1)  Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements (OJ L 255, p. 11)

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/10 |
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Reference for a preliminary ruling from House of Lords (United Kingdom) made on 17 July 2006 — Marks & Spencer plc v Her Majesty's Commissioners of Customs and Excise

(Case C-309/06)

(2006/C 261/18)

Language of the case: English

Referring court

House of Lords

Parties to the main proceedings

Applicant: Marks & Spencer plc

Defendant: Her Majesty's Commissioners of Customs and Excise

Questions referred

| 1. | Where, under Article 28(2)(a) of the Sixth VAT Directive (1) (both before and after its amendment in 1992 by Directive 92/77), a Member State has maintained in its domestic VAT legislation an exemption with refund of input tax in respect of certain specified supplies, does a trader making such supplies have a directly enforceable Community law right to be taxed at a zero rate? |
| --- | --- |

1.

Where, under Article 28(2)(a) of the Sixth VAT Directive (1) (both before and after its amendment in 1992 by Directive 92/77), a Member State has maintained in its domestic VAT legislation an exemption with refund of input tax in respect of certain specified supplies, does a trader making such supplies have a directly enforceable Community law right to be taxed at a zero rate?

| 2. | If the answer to Question 1 is in the negative, where, under Article 28(2)(a) of the Sixth VAT Directive (both before and after its amendment in 1992 by Directive 92/77), a Member State has maintained in its domestic VAT legislation an exemption with refund of input tax in respect of certain specified supplies but has mistakenly interpreted its domestic legislation with the consequence that certain supplies benefiting from exemption with refund of input tax under its domestic legislation have been subject to tax at the standard rate, do the general principles of Community law, including fiscal neutrality, apply so as to give a trader who made such supplies a right to recover the sums mistakenly charged in respect of them? |
| --- | --- |

2.

If the answer to Question 1 is in the negative, where, under Article 28(2)(a) of the Sixth VAT Directive (both before and after its amendment in 1992 by Directive 92/77), a Member State has maintained in its domestic VAT legislation an exemption with refund of input tax in respect of certain specified supplies but has mistakenly interpreted its domestic legislation with the consequence that certain supplies benefiting from exemption with refund of input tax under its domestic legislation have been subject to tax at the standard rate, do the general principles of Community law, including fiscal neutrality, apply so as to give a trader who made such supplies a right to recover the sums mistakenly charged in respect of them?

| 3. | If the answer to Question 1 or Question 2 is in the affirmative, do the Community law principles of equal treatment and fiscal neutrality in principle apply with the result that they would be infringed if the trader in question is not repaid the entire amount mistakenly charged on the supplies made by him in circumstances where:






  a) | the trader would be unjustly enriched by repayment to him of the entire amount; |
| --- | --- | --- |

3.

If the answer to Question 1 or Question 2 is in the affirmative, do the Community law principles of equal treatment and fiscal neutrality in principle apply with the result that they would be infringed if the trader in question is not repaid the entire amount mistakenly charged on the supplies made by him in circumstances where:

a)

the trader would be unjustly enriched by repayment to him of the entire amount;

| b) | domestic legislation provides that overpaid tax cannot be repaid to the extent that repayment would lead to unjust enrichment of the trader; but |
| --- | --- |

b)

domestic legislation provides that overpaid tax cannot be repaid to the extent that repayment would lead to unjust enrichment of the trader; but

| c) | domestic legislation makes no provision similar to that referred to in (ii) in the case of claims by ‘repayment traders’? (A ‘repayment trader’ is a taxable person who, in a given prescribed accounting period, makes no payment of VAT to the competent national authorities but receives a payment from them because, in that period, the amount of VAT that he is entitled to deduct exceeds the amount of VAT due in respect of supplies made by him.) |
| --- | --- |

c)

domestic legislation makes no provision similar to that referred to in (ii) in the case of claims by ‘repayment traders’? (A ‘repayment trader’ is a taxable person who, in a given prescribed accounting period, makes no payment of VAT to the competent national authorities but receives a payment from them because, in that period, the amount of VAT that he is entitled to deduct exceeds the amount of VAT due in respect of supplies made by him.)

| 4 | Is the answer to Question 3 affected by whether or not there is evidence that the difference of treatment between traders making claims for the repayment of overpaid output tax and traders making claims for additional amounts by way of input tax deduction (resulting from the over declaration of output tax) has, or has not, caused any financial loss or disadvantage to the former and, if so, how? |
| --- | --- |

4

Is the answer to Question 3 affected by whether or not there is evidence that the difference of treatment between traders making claims for the repayment of overpaid output tax and traders making claims for additional amounts by way of input tax deduction (resulting from the over declaration of output tax) has, or has not, caused any financial loss or disadvantage to the former and, if so, how?

| 5 | If, in the situation described in Question 3, the Community law principles of equal treatment and fiscal neutrality apply and would otherwise be infringed, does Community law require or permit a court to remedy the difference of treatment by upholding a trader's claim to a repayment of overpaid tax in such a way as to enrich him unjustly or require or permit a court to grant some other remedy (and, if so, which)? |
| --- | --- |

5

If, in the situation described in Question 3, the Community law principles of equal treatment and fiscal neutrality apply and would otherwise be infringed, does Community law require or permit a court to remedy the difference of treatment by upholding a trader's claim to a repayment of overpaid tax in such a way as to enrich him unjustly or require or permit a court to grant some other remedy (and, if so, which)?

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

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/11 |
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Reference for a preliminary ruling from the Verwaltungsgericht Chemnitz (Germany) lodged on 3 August 2006 — Matthias Zerche v Landkreis Mittweida

(Case C-334/06)

(2006/C 261/19)

Language of the case: German

Referring court

Verwaltungsgericht Chemnitz

Parties to the main proceedings

Applicant: Matthias Zerche

Defendant: Landkreis Mittweida

Questions referred

Are the combined provisions of Article 1(2) and Article 8(2) and (4) of Directive 91/439/EEC (1) to be interpreted as meaning that a Member State within its territory may refuse to recognise a right to drive under a driving licence issued by another Member State where the holder of the foreign EU driving licence has previously, in the territory of the first Member State, had his driving licence withdrawn or cancelled for some reason, if the ban on the issue of a new driving licence in that Member State, with which that measure was coupled, had expired before the driving licence was issued in the other Member State and if it is to be concluded on the basis of objective evidence (non-residence in the Member State issuing the driving licence or the failure of an application for the national driving licence to be restored) that the only reason for acquiring the foreign EU driving licence was to circumvent the strict substantive requirements of national procedure for the restoration of a driving licence, particularly the need for a medical/psychological report?

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(1)  OJ L 237, p. 1.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/11 |
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Reference for a preliminary ruling from the Verwaltungsgericht Chemnitz (Germany) lodged on 3 August 2006 — Manfred Seuke v Landkreis Mittlerer Erzgebirgskreis

(Case C-335/06)

(2006/C 261/20)

Language of the case: German

Referring court

Verwaltungsgericht Chemnitz

Parties to the main proceedings

Applicant: Steffen Schubert

Defendant: Landkreis Mittlerer Erzgebirgskreis

Questions referred

| 1. | Is a Member State permitted, in conformity with Article 1(2) and Article 8(2) and (4) of Directive 91/439/EEC, to require a holder of a driving licence issued in another Member State to apply to the national authority of the first Member State for recognition of the right to drive in its territory where the holder of the foreign EU driving licence has previously, in the territory of the first Member State, had his driving withdrawn or cancelled for some reason?
  If not: |
| --- | --- |

1.

Is a Member State permitted, in conformity with Article 1(2) and Article 8(2) and (4) of Directive 91/439/EEC, to require a holder of a driving licence issued in another Member State to apply to the national authority of the first Member State for recognition of the right to drive in its territory where the holder of the foreign EU driving licence has previously, in the territory of the first Member State, had his driving withdrawn or cancelled for some reason?

If not:

| 2. | Are the combined provisions of Article 1(2) and Article 8(2) and (4) of Directive 91/439/EEC (1) to be interpreted as meaning that a Member State within its territory may refuse to recognise a right to drive under a driving licence issued by another Member State where the holder of the foreign EU driving licence has previously, in the territory of the first Member State, had his driving licence withdrawn or cancelled for some reason, if the ban on the issue of a new driving licence in that Member State, with which that measure was coupled, had expired before the driving licence was issued in the other Member State and if it is to be concluded on the basis of objective evidence (non-residence in the Member State issuing the driving licence or the failure of an application for the national driving licence to be restored) that the only reason for acquiring the foreign EU driving licence was to circumvent the strict substantive requirements of national procedure for the restoration of a driving licence, particularly the need for a medical/psychological report? |
| --- | --- |

2.

Are the combined provisions of Article 1(2) and Article 8(2) and (4) of Directive 91/439/EEC (1) to be interpreted as meaning that a Member State within its territory may refuse to recognise a right to drive under a driving licence issued by another Member State where the holder of the foreign EU driving licence has previously, in the territory of the first Member State, had his driving licence withdrawn or cancelled for some reason, if the ban on the issue of a new driving licence in that Member State, with which that measure was coupled, had expired before the driving licence was issued in the other Member State and if it is to be concluded on the basis of objective evidence (non-residence in the Member State issuing the driving licence or the failure of an application for the national driving licence to be restored) that the only reason for acquiring the foreign EU driving licence was to circumvent the strict substantive requirements of national procedure for the restoration of a driving licence, particularly the need for a medical/psychological report?

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(1)  OJ L 237, p. 1.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/11 |
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Reference for a preliminary ruling from the Verwaltungsgericht Chemnitz (Germany) lodged on 3 August 2006 — Manfred Seuke v Landkreis Mittweida

(Case C-336/06)

(2006/C 261/21)

Language of the case: German

Referring court

Verwaltungsgericht Chemnitz

Parties to the main proceedings

Applicant: Manfred Seuke

Defendant: Landkreis Mittweida

Questions referred

| 1. | Is a Member State permitted, in conformity with Article 1(2) and Article 8(2) and (4) of Directive 91/439/EEC (1), to require a holder of a driving licence issued in another Member State to apply to the national authority of the first Member State for recognition of the right to drive in its territory where the holder of the foreign EU driving licence has previously, in the territory of the first Member State, had his driving withdrawn or cancelled for some reason?
  If not: |
| --- | --- |

1.

Is a Member State permitted, in conformity with Article 1(2) and Article 8(2) and (4) of Directive 91/439/EEC (1), to require a holder of a driving licence issued in another Member State to apply to the national authority of the first Member State for recognition of the right to drive in its territory where the holder of the foreign EU driving licence has previously, in the territory of the first Member State, had his driving withdrawn or cancelled for some reason?

If not:

| 2. | Are the combined provisions of Article 1(2) and Article 8(2) and (4) of Directive 91/439/EEC to be interpreted as meaning that a Member State within its territory may refuse to recognise a right to drive under a driving licence issued by another Member State where the holder of the foreign EU driving licence has previously, in the territory of the first Member State, had his driving licence withdrawn or cancelled for some reason, if the ban on the issue of a new driving licence in that Member State, with which that measure was coupled, had expired before the driving licence was issued in the other Member State and if it is to be concluded on the basis of objective evidence (non-residence in the Member State issuing the driving licence or the failure of an application for the national driving licence to be restored) that the only reason for acquiring the foreign EU driving licence was to circumvent the strict substantive requirements of national procedure for the restoration of a driving licence, particularly the need for a medical/psychological report? |
| --- | --- |

2.

Are the combined provisions of Article 1(2) and Article 8(2) and (4) of Directive 91/439/EEC to be interpreted as meaning that a Member State within its territory may refuse to recognise a right to drive under a driving licence issued by another Member State where the holder of the foreign EU driving licence has previously, in the territory of the first Member State, had his driving licence withdrawn or cancelled for some reason, if the ban on the issue of a new driving licence in that Member State, with which that measure was coupled, had expired before the driving licence was issued in the other Member State and if it is to be concluded on the basis of objective evidence (non-residence in the Member State issuing the driving licence or the failure of an application for the national driving licence to be restored) that the only reason for acquiring the foreign EU driving licence was to circumvent the strict substantive requirements of national procedure for the restoration of a driving licence, particularly the need for a medical/psychological report?

---

(1)  OJ L 237, p. 1.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/12 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/12

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Action brought on 4 August 2006 — Commission of the European Communities v Kingdom of Spain

(Case C-338/06)

(2006/C 261/22)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: G. Braun and R. Vidal Puig, Agents)

Defendant: Kingdom of Spain

Forms of order sought

| — | Declare that, by failing to transpose correctly Council Directive 77/91/EEC (1) of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent, the Kingdom of Spain has failed to fulfil its obligations under that directive, and in particular:






  (1) | Article 42, read in conjunction with Article 29(1) and (4), by allowing the general meeting of shareholders to approve the issue of new shares without pre-emptive subscription rights, at a price below their fair value; |
| --- | --- | --- |

—

Declare that, by failing to transpose correctly Council Directive 77/91/EEC (1) of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent, the Kingdom of Spain has failed to fulfil its obligations under that directive, and in particular:

(1)

Article 42, read in conjunction with Article 29(1) and (4), by allowing the general meeting of shareholders to approve the issue of new shares without pre-emptive subscription rights, at a price below their fair value;

| (2) | Article 29(1), by granting the right to pre-emptive subscription of shares in the event of a capital increase by consideration in cash, not only to shareholders, but also to holders of bonds convertible into shares; |
| --- | --- |

(2)

Article 29(1), by granting the right to pre-emptive subscription of shares in the event of a capital increase by consideration in cash, not only to shareholders, but also to holders of bonds convertible into shares;

| (3) | Article 29(6), read in conjunction with Article 29(1), by granting the right to pre-emptive subscription rights for bonds convertible into shares not only to shareholders, but also to the holders of bonds convertible into shares pertaining to earlier issues; |
| --- | --- |

(3)

Article 29(6), read in conjunction with Article 29(1), by granting the right to pre-emptive subscription rights for bonds convertible into shares not only to shareholders, but also to the holders of bonds convertible into shares pertaining to earlier issues;

| (4) | Article 29(6), read in conjunction with Article 29(4), by failing to provide that the shareholders' meeting may decide to exclude pre-emptive subscription rights for bonds convertible into shares. |
| --- | --- |

(4)

Article 29(6), read in conjunction with Article 29(4), by failing to provide that the shareholders' meeting may decide to exclude pre-emptive subscription rights for bonds convertible into shares.

| — | order Kingdom of Spain to pay the costs. |
| --- | --- |

—

order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Commission takes the view that Articles 158, 159 and 293 of Royal Legislative Decree 1564/1989 of 22 December 1989 approving the amended text of the Law on companies (‘LSA’) incorrectly transpose Directive 77/91/EEC on the following grounds:

| (1) | The second subparagraph of Article 159(1)(c) of the LSA is contrary to Article 42, read in conjunction with Article 29(1) and (4), of Directive 77/91/EEC, in that it permits the shareholders' meeting to decide to issue new shares without pre-emptive subscription rights at a price below their market value; |
| --- | --- |

(1)

The second subparagraph of Article 159(1)(c) of the LSA is contrary to Article 42, read in conjunction with Article 29(1) and (4), of Directive 77/91/EEC, in that it permits the shareholders' meeting to decide to issue new shares without pre-emptive subscription rights at a price below their market value;

| (2) | Article 158(1) of the LSA is contrary to Article 29(1) of Directive 77/91/EEC, in that it grants the right to pre-emptive subscription for shares in the event of capital increase by consideration in cash not only to shareholders, but also to holders of bonds convertible into shares; |
| --- | --- |

(2)

Article 158(1) of the LSA is contrary to Article 29(1) of Directive 77/91/EEC, in that it grants the right to pre-emptive subscription for shares in the event of capital increase by consideration in cash not only to shareholders, but also to holders of bonds convertible into shares;

| (3) | Article 158(1) of the LSA is contrary to Article 29(6) of Directive 77/91/EEC, read in conjunction with Article 29(1), in that it grants the right to pre-emptive subscription for bonds convertible into shares not only to shareholders, but also to the holders of bonds convertible into shares pertaining to earlier issues; |
| --- | --- |

(3)

Article 158(1) of the LSA is contrary to Article 29(6) of Directive 77/91/EEC, read in conjunction with Article 29(1), in that it grants the right to pre-emptive subscription for bonds convertible into shares not only to shareholders, but also to the holders of bonds convertible into shares pertaining to earlier issues;

| (4) | Article 293(2) of the LSA is contrary to Article 29(6) of Directive 77/91/EEC, read in conjunction with Article 29(4), in that it fails to provide that the shareholders' meeting may decide to exclude the right to pre-emptive subscription for bonds convertible into shares. |
| --- | --- |

(4)

Article 293(2) of the LSA is contrary to Article 29(6) of Directive 77/91/EEC, read in conjunction with Article 29(4), in that it fails to provide that the shareholders' meeting may decide to exclude the right to pre-emptive subscription for bonds convertible into shares.

---

(1)  OJ L 26 of 31. 1. 1977, p. 1

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/13 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/13

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Appeal brought on 8 August 2006 by J. C. Blom against the judgment of the Court of First Instance (Fifth Chamber) delivered on 30 May 2006 in Case T-87/94 J.C. Blom v Council of the European Union and Commission of the European Communities

(Case C-344/06 P)

(2006/C 261/23)

Language of the case: Dutch

Parties

Appellant): J. C. Blom (represented by E. Pijnacker Hordijk and S. C. H. Molin, advocaten)

Other parties to the proceedings: Council of the European Union and Commission of the European Communities

Form of order sought

| — | Set aside the judgment of the Court of First Instance of 30 May in Case T-87/94, as rectified by the Order of the Court of First Instance of 30 May 2006 (T-87/94 REC) and, ruling anew, uphold the appellant's claim or, in the alternative, refer the case back to the Court of First Instance for judgment; |
| --- | --- |

—

Set aside the judgment of the Court of First Instance of 30 May in Case T-87/94, as rectified by the Order of the Court of First Instance of 30 May 2006 (T-87/94 REC) and, ruling anew, uphold the appellant's claim or, in the alternative, refer the case back to the Court of First Instance for judgment;

| — | order the Council and the Commission to pay the costs at both instances. |
| --- | --- |

—

order the Council and the Commission to pay the costs at both instances.

Pleas in law and main arguments

First plea: the Court of First Instance infringed its obligation to state reasons by disregarding material parts of Mr Blom's pleadings at first instance.

Second plea: The Court wrongly failed to appreciate that the Institutions have expressly and unconditionally recognised the Community's liability towards producers in the position of Mr Blom. The Court also wrongly held that he cannot derive any right from the position adopted by the Institutions, extra-judicially and before the courts, for the simple reason that he did not accept the quantity under Regulation No 2187/93. (1)

The judgment under appeal should be set aside because the Court of First Instance made a serious misappraisal of the legitimate expectations which the Institutions created in the case of the 83-ers. As no further examination of the facts is called for, the Court of Justice can itself dispose of the case in the appeal. Alternatively, the case should be referred back to the Court of First Instance.

Third plea: The Court of First Instance applied an incorrect test for assessing the causal link between the loss suffered by Mr Blom and the Community's unlawful conduct.

The Court disregarded the principle of protection of legitimate expectations by failing to infer from Mr Blom's receipt of a specific reference quantity that, subject to proof to the contrary, he intended to resume production after the expiry of the non-marketing undertaking. The Court's finding that he did not have that intention is also incomprehensible, at any rate, insufficiently reasoned, and incorrectly applies the principle of the protection of legitimate expectations.

---

(1)  Council Regulation (EEC) No 2187/93 of 22 July 1993 providing for an offer of compensation to certain producers of milk and milk products temporarily prevented from carrying on their trade (OJ 1993 L 196, p. 6).

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/13 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/13

---

Appeal brought on 4 September 2006 by Markku Sahlstedt, Juha Kankkunen, Mikko Tanner, Toini Tanner, Liisa Tanner, Eeva Jokinen, Aili Oksanen, Olli Tanner, Leena Tanner, Aila Puttonen, Risto Tanner, Tom Järvinen, Runo K. Kurko, Maa- ja metsätaloustuottajain keskusliitto MTK ry and MTK:n säätiö against the judgment delivered on 22 June 2006 in Case T-150/05 Markku Sahlstedt and Others v Commission of the European Communities

(Case C-362/06P)

(2006/C 261/24)

Language of the case: Finnish

Parties

Appellants: Markku Sahlstedt, Juha Kankkunen, Mikko Tanner, Toini Tanner, Liisa Tanner, Eeva Jokinen, Aili Oksanen, Olli Tanner, Leena Tanner, Aila Puttonen, Risto Tanner, Tom Järvinen, Runo K. Kurko, Maa- ja metsätaloustuottajain keskusliitto MTK ry, MTK:n säätiö (represented by K. Marttinen, asianajaja)

Other parties to the proceedings: Commission of the European Communities, Republic of Finland

Form of order sought

The Court is asked to:

| — | set aside the judgment of the Court of First Instance of 22 June 2006 in Case T-150/05 dismissing the appellants' application as inadmissible; |
| --- | --- |

—

set aside the judgment of the Court of First Instance of 22 June 2006 in Case T-150/05 dismissing the appellants' application as inadmissible;

| — | declare the application in Case T-150/05 admissible; |
| --- | --- |

—

declare the application in Case T-150/05 admissible;

| — | give judgment in the case and grant the principal and alternative forms of order sought by the parties who were applicants before the Court of First Instance and thus allow the application in Case T-150/05 in full; |
| --- | --- |

—

give judgment in the case and grant the principal and alternative forms of order sought by the parties who were applicants before the Court of First Instance and thus allow the application in Case T-150/05 in full;

| — | order the Commission of the European Communities to pay the costs incurred in the proceedings before the Court of First Instance and in the proceedings now before the Court of Justice. |
| --- | --- |

—

order the Commission of the European Communities to pay the costs incurred in the proceedings before the Court of First Instance and in the proceedings now before the Court of Justice.

Pleas in law and main arguments

The Court of First Instance considered that the contested Commission Decision 2005/101/EC (1) was not of direct concern to the applicants within the meaning of Article 230 EC. The decision dismissing the application as inadmissible is wrong in law and should be set aside on the following grounds:

| 1. | Direct effects on legal position

  The Court misinterpreted Article 6 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (2) by considering that the Commission's Decision had no direct legal effects on the applicants. The appellants consider, however, that the decision directly affects their legal position because it






  (i) | definitively determines a site's conservation area status; |
| --- | --- | --- |

1.

Direct effects on legal position

The Court misinterpreted Article 6 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (2) by considering that the Commission's Decision had no direct legal effects on the applicants. The appellants consider, however, that the decision directly affects their legal position because it

(i)

definitively determines a site's conservation area status;

| (ii) | prohibits landowners from allowing their property to deteriorate; |
| --- | --- |

(ii)

prohibits landowners from allowing their property to deteriorate;

| (iii) | lays down a requirement that plans or projects be assessed. |
| --- | --- |

(iii)

lays down a requirement that plans or projects be assessed.

| 2. | Automatic direct effects

  The Court misinterpreted Article 6 by taking the view that for the Commission's decision to have legal effects measures of the Member State are required, and these are discretionary. In the appellants' view, parts of the Commission's decision have legal effects, however, for instance the prohibition on allowing property to deteriorate and the requirement that plans and projects be assessed, which take effect automatically without implementing measures on the part of the Member State. |
| --- | --- |

2.

Automatic direct effects

The Court misinterpreted Article 6 by taking the view that for the Commission's decision to have legal effects measures of the Member State are required, and these are discretionary. In the appellants' view, parts of the Commission's decision have legal effects, however, for instance the prohibition on allowing property to deteriorate and the requirement that plans and projects be assessed, which take effect automatically without implementing measures on the part of the Member State.

| 3. | Lack of effective legal remedies

  In European Community law the principle of audi alteram partem applies in administrative and judicial proceedings. Under that principle the parties must in practice have a right of appeal or other effective legal remedy against decisions. If the right to bring an action is denied to them, the appellants at no stage in these proceedings have a possibility of challenging the authorities' decision by which their land was included in the Natura 2000 network and restrictions were imposed in the form of the prohibition on allowing land to deteriorate and the requirement to submit to an assessment. It was a decision by which the Natura 2000 status of the sites was definitively decided. |
| --- | --- |

3.

Lack of effective legal remedies

In European Community law the principle of audi alteram partem applies in administrative and judicial proceedings. Under that principle the parties must in practice have a right of appeal or other effective legal remedy against decisions. If the right to bring an action is denied to them, the appellants at no stage in these proceedings have a possibility of challenging the authorities' decision by which their land was included in the Natura 2000 network and restrictions were imposed in the form of the prohibition on allowing land to deteriorate and the requirement to submit to an assessment. It was a decision by which the Natura 2000 status of the sites was definitively decided.

---

(1)  OJ 2005 L 40, p. 1.

(2)  OJ 1992 L 206, p. 7.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/14 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/14

---

Appeal brought on 6 September 2006 by Comunidad Autónoma de Valencia — Generalidad Valenciana against the order made on 5 July 2006 by the Court of First Instance (Second Chamber) in Case T-357/05 Comunidad Autónoma de Valencia — Generalidad Valenciana v Commission of the European Communities

(Case C-363/06 P)

(2006/C 261/25)

Language of the case: Spanish

Parties

Appellant: Comunidad Autónoma de Valencia — Generalidad Valenciana (represented by: J. V. Sánchez-Tarazaga Marcelino, letrado, and C. Fernández Vicién and I. Moreno-Tapia Rivas, abogados)

Other party to the proceedings: Commission of the European Communities

Form of order sought

| — | declare that the present case is admissible and well founded; |
| --- | --- |

—

declare that the present case is admissible and well founded;

| — | set aside the order of the Court of First Instance of 5 July 2006; |
| --- | --- |

—

set aside the order of the Court of First Instance of 5 July 2006;

| — | refer the case back to the Court of First Instance so that the application originally filed is declared admissible and the proceedings continued; |
| --- | --- |

—

refer the case back to the Court of First Instance so that the application originally filed is declared admissible and the proceedings continued;

| — | order the Commission to pay all of the costs of the present proceedings. |
| --- | --- |

—

order the Commission to pay all of the costs of the present proceedings.

Pleas in law and main arguments

This appeal is based on the following pleas in law:

| | The Court of First Instance erred in law: it infringed the EC Treaty, in particular Article 19 of the Protocol annexed to the Treaty establishing the European Community on the Statute of the Court of Justice (which, in accordance with Article 311 EC, forms an integral part thereof) which lays down the criteria governing the legal representation of the parties before the Community courts. |
| --- | --- |

The Court of First Instance erred in law: it infringed the EC Treaty, in particular Article 19 of the Protocol annexed to the Treaty establishing the European Community on the Statute of the Court of Justice (which, in accordance with Article 311 EC, forms an integral part thereof) which lays down the criteria governing the legal representation of the parties before the Community courts.

| | It infringed essential procedural requirements by failing to grant the applicant a period in which to put the application in order, in breach of Article 44(6) of the Rules of Procedure of the Court of First Instance, misapplying Article 111 thereof to the present case and failing to hear the applicant before declaring the action inadmissible, in breach of the principle of the right to be heard which applies in all proceedings. |
| --- | --- |

It infringed essential procedural requirements by failing to grant the applicant a period in which to put the application in order, in breach of Article 44(6) of the Rules of Procedure of the Court of First Instance, misapplying Article 111 thereof to the present case and failing to hear the applicant before declaring the action inadmissible, in breach of the principle of the right to be heard which applies in all proceedings.

| | It infringed the principle of non-discrimination by denying the legal representative (letrado) of the Generalidad Valenciana a right which has been undisputed in previous cases in respect of representatives who have appeared before the Community courts in that same capacity. |
| --- | --- |

It infringed the principle of non-discrimination by denying the legal representative (letrado) of the Generalidad Valenciana a right which has been undisputed in previous cases in respect of representatives who have appeared before the Community courts in that same capacity.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/15 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/15

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Action brought on 7 September 2006 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

(Case C-367/06)

(2006/C 261/26)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: N. Yerrell, agent)

Defendant: United Kingdom of Great Britain and Northern Ireland

The applicant claims that the Court should:

| — | declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2003/41/EC of the European Parliament and of the Council of 3rd June 2003 (1) on the activities and supervision of institutions for occupational retirement provision, or in any event by failing to notify those provisions to the Commission, the United Kingdom has failed to fulfil its obligations under the Directive; and |
| --- | --- |

—

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2003/41/EC of the European Parliament and of the Council of 3rd June 2003 (1) on the activities and supervision of institutions for occupational retirement provision, or in any event by failing to notify those provisions to the Commission, the United Kingdom has failed to fulfil its obligations under the Directive; and

| — | order United Kingdom of Great Britain and Northern Ireland to pay the costs. |
| --- | --- |

—

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

Pleas in law and main arguments

The period within which the directive had to be transposed expired on 23 September 2005.

---

(1)  OJ L 235, 23.09.2003, p. 10 - 21

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/15 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/15

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Action brought on 8 September 2006 — Commission of the European Communities v Republic of Austria

(Case C-369/06)

(2006/C 261/27)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: T. Scharf and K. Gross, Agents)

Defendant: Republic of Austria

Form of order sought

| — | declare that, by failing to transpose Commission Directive 2000/52/EC of 26 July 2000 amending Directive 80/723/EEC on the transparency of financial relations between Member States and public undertakings (1), the Republic of Austria has failed to fulfil its obligations under both Article 2 of the Directive and the third paragraph of Article 249 EC; |
| --- | --- |

—

declare that, by failing to transpose Commission Directive 2000/52/EC of 26 July 2000 amending Directive 80/723/EEC on the transparency of financial relations between Member States and public undertakings (1), the Republic of Austria has failed to fulfil its obligations under both Article 2 of the Directive and the third paragraph of Article 249 EC;

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

—

order the Republic of Austria to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the Directive expired on 31 July 2001.

---

(1)  OJ 2000 L 193, p. 75.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/15 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/15

---

Action brought on 8 September 2006 — Commission of the European Communities v Portuguese Republic

(Case C-370/06)

(2006/C 261/28)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: D. Maidani and P. Andrade, Agents)

Defendant: Portuguese Republic

Form of order sought

| — | a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/24/EC (1) of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions or, in any case, by failing to communicate them to the Commission, the Portuguese Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

—

a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/24/EC (1) of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions or, in any case, by failing to communicate them to the Commission, the Portuguese Republic has failed to fulfil its obligations under that directive;

| — | an order that the Portuguese Republic should pay the costs. |
| --- | --- |

—

an order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

The period allowed for transposition of the directive into domestic law expired on 5 May 2004.

---

(1)  OJ 2001 L 125, p. 15

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/16 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/16

---

Action brought on 14 September 2006 — Commission of the European Communities v Portuguese Republic

(Case C-375/06)

(2006/C 261/29)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: A. Caeiros and B. Schima, Agents)

Defendant: Portuguese Republic

Form of order sought

| — | primarily, a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2003/105/EC (1) of the European Parliament and of the Council of 16 December 2003 amending Council Directive 96/82/EC on the control of major-accident hazards involving dangerous substances, the Portuguese Republic has failed to fulfil its obligation under Article 2 of Directive 2003/105/EC; |
| --- | --- |

—

primarily, a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2003/105/EC (1) of the European Parliament and of the Council of 16 December 2003 amending Council Directive 96/82/EC on the control of major-accident hazards involving dangerous substances, the Portuguese Republic has failed to fulfil its obligation under Article 2 of Directive 2003/105/EC;

| — | or, alternatively, a declaration that by failing forthwith to inform the Commission of such provisions, the Portuguese Republic has failed to fulfil its obligation under Article 2 of that directive; |
| --- | --- |

—

or, alternatively, a declaration that by failing forthwith to inform the Commission of such provisions, the Portuguese Republic has failed to fulfil its obligation under Article 2 of that directive;

| — | an order that the Portuguese Republic should pay the costs. |
| --- | --- |

—

an order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of that directive into domestic law expired on 1 July 2005.

---

(1)  OJ 2003 L 345, p. 97

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/16 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/16

---

Action brought on 14 September 2006 — Commission of the European Communities v Portuguese Republic

(Case C-376/06)

(2006/C 261/30)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: A. Caeiros and J.-B. Laignelot, Agents)

Defendant: Portuguese Republic

Form of order sought

| — | primarily, a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/42/EC (1) of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, the Portuguese Republic has failed to fulfil its obligations under Directive 2001/42/EC; |
| --- | --- |

—

primarily, a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/42/EC (1) of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, the Portuguese Republic has failed to fulfil its obligations under Directive 2001/42/EC;

| — | or, in the alternative, a declaration that, by failing forthwith to inform the Commission of such measures, the Portuguese Republic has failed to fulfil its obligations under Article 13 of Directive 2001/42/EC; |
| --- | --- |

—

or, in the alternative, a declaration that, by failing forthwith to inform the Commission of such measures, the Portuguese Republic has failed to fulfil its obligations under Article 13 of Directive 2001/42/EC;

| — | an order that the Portuguese Republic should pay the costs. |
| --- | --- |

—

an order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the directive into domestic law expired on 21 July 2004.

---

(1)  OJ 2001 L 197, p. 30

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/17 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/17

---

Action brought on 14 September 2006 — Commission of the European Communities v Republic of Finland

(Case C-377/06)

(2006/C 261/31)

Language of the case: Finnish

Parties

Applicant: Commission of the European Communities (represented by: I. Koskinen and J.-B. Laignelot, acting as Agents)

Defendant: Republic of Finland

Form of order sought

| — | declare that, by failing to adopt, in respect of the province of Åland, the laws, regulations and administrative provisions necessary to comply with Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (1), or in any event, by failing to inform the Commission thereof, the Republic of Finland has failed to fulfil its obligations under that directive. |
| --- | --- |

—

declare that, by failing to adopt, in respect of the province of Åland, the laws, regulations and administrative provisions necessary to comply with Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (1), or in any event, by failing to inform the Commission thereof, the Republic of Finland has failed to fulfil its obligations under that directive.

| — | order the Republic of Finland to pay the costs. |
| --- | --- |

—

order the Republic of Finland to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing the directive expired on 25 June 2005.

---

(1)  OJ 2003 L 156, p. 17

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/17 |
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Reference for a preliminary ruling from the Conseil d'Etat (Belgium) lodged on 15 September 2006 — Clear Channel Belgium S.A. v City of Liège

(Case C-378/06)

(2006/C 261/32)

Language of the case: French

Referring court

Conseil d'Etat (Belgium)

Parties to the main proceedings

Applicant: Clear Channel Belgium S.A.

Defendant: City of Liège

Intervener: J.-C. Decaux Belgium S.A.

Questions referred

| 1. | Does a contract classified as a ‘licence in respect of public land’ exclude the application of Council Directive 92/50/EEC (1) of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, where, notwithstanding the award by the municipal authority to the contractor of the exclusive right to exploit for profit advertising space on street furniture supplied to the municipal authority, the contract requires the contractor to supply a number of services for the benefit of the authority (provision of street furniture, and of space for municipal posters)? |
| --- | --- |

1.

Does a contract classified as a ‘licence in respect of public land’ exclude the application of Council Directive 92/50/EEC (1) of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, where, notwithstanding the award by the municipal authority to the contractor of the exclusive right to exploit for profit advertising space on street furniture supplied to the municipal authority, the contract requires the contractor to supply a number of services for the benefit of the authority (provision of street furniture, and of space for municipal posters)?

| 2. | Where there is no price in the classic sense of that term, may the valuable consideration for the services supplied to the municipal authority consist in the waiver by the authority of advertising revenue from which the financial payments and contributions in kind and display fees provided for in the contract are, as in this case, to be deducted? |
| --- | --- |

2.

Where there is no price in the classic sense of that term, may the valuable consideration for the services supplied to the municipal authority consist in the waiver by the authority of advertising revenue from which the financial payments and contributions in kind and display fees provided for in the contract are, as in this case, to be deducted?

| 3. | Does the principal or ancillary nature of the various obligations provided for in the contract have any relevance to the application of the aforementioned directive? |
| --- | --- |

3.

Does the principal or ancillary nature of the various obligations provided for in the contract have any relevance to the application of the aforementioned directive?

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(1)  OJ L 209, 24.07.1992, p. 1.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/17 |
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C 261/17

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Action brought on 15 September 2006 — Commission of the European Communities v Hellenic Republic

(Case C-381/06)

(2006/C 261/33)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: M. Patakia and J. Enegren)

Defendant: Hellenic Republic

Form of order sought

| — | declare that, by not adopting, and in any event by not notifying to the Commission, the laws, regulations and administrative provisions necessary to comply with Directive 2002/14/EC (1) of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community, the Hellenic Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by not adopting, and in any event by not notifying to the Commission, the laws, regulations and administrative provisions necessary to comply with Directive 2002/14/EC (1) of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community, the Hellenic Republic has failed to fulfil its obligations under that directive;

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

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The time-limit for transposition of Directive 2002/14/EC into domestic law expired on 23 March 2005.

---

(1)  OJ L 80, 23.3.2002, p. 29.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/18 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/18

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Action brought on 20 September 2006 — Commission of the European Communities v French Republic

(Case C-388/06)

(2006/C 261/34)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: W. Mölls, Agent)

Defendant: French Republic

Form of order sought

| — | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/96/EC of 27 October 2003, restructuring the Community framework for the taxation of energy products and electricity (1), or in any event by failing to communicate those provisions to the Commission, the French Republic has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/96/EC of 27 October 2003, restructuring the Community framework for the taxation of energy products and electricity (1), or in any event by failing to communicate those provisions to the Commission, the French Republic has failed to fulfil its obligations under that directive;

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

—

order the French Republic to pay the costs.

Pleas in law and main arguments

The period for the transposition of Directive 2003/96/EC expired on 31 December 2003.

---

(1)  OJ L 283, 31.10.2003, p. 51.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/18 |
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28.10.2006

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Official Journal of the European Union

C 261/18

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Action brought on 20 September 2006 — Commission of the European Communities v Kingdom of Belgium

(Case C-389/06)

(2006/C 261/35)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: C. O'Reilly, Agent)

Defendant: Kingdom of Belgium

Form of order sought

| — | declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (1), or in any event by failing to communicate those provisions to the Commission the Kingdom of Belgium has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (1), or in any event by failing to communicate those provisions to the Commission the Kingdom of Belgium has failed to fulfil its obligations under that directive;

| — | order the Kingdom of Belgium to pay the costs |
| --- | --- |

—

order the Kingdom of Belgium to pay the costs

Plea in law and main arguments

The period for the transposition of Directive 2003/9/EC expired on 6 February 2005.

---

(1)  OJ L 31, 6.2.2003, p.18

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COURT OF FIRST INSTANCE

| 28.10.2006 | EN | Official Journal of the European Union | C 261/19 |
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Assignment of Mr Wahl and Mr Prek to Chambers

(2006/C 261/36)

At its plenary meeting on 9 October 2006, the Court of First Instance decided, following the taking up of their duties by Mr Wahl and Mr Prek, to amend as follows the decision of the plenary meeting of 5 July 2006 on the assignment of Judges to Chambers:

For the period from 9 October 2006 to 31 August 2007, the following are assigned:

| | to the First Chamber (Extended Composition), sitting with five Judges: | Mr Vesterdorf, President, Mr Cooke, Mr García-Valdecasas, Ms Labucka and Mr Prek, Judges; |
| --- | --- | --- |

to the First Chamber (Extended Composition), sitting with five Judges:

Mr Vesterdorf, President, Mr Cooke, Mr García-Valdecasas, Ms Labucka and Mr Prek, Judges;

| | to the First Chamber, sitting with three Judges: | Mr Cooke, President of the Chamber, Mr García-Valdecasas, Ms Labucka and Mr Prek, Judges; |
| --- | --- | --- |

to the First Chamber, sitting with three Judges:

Mr Cooke, President of the Chamber, Mr García-Valdecasas, Ms Labucka and Mr Prek, Judges;

| | to the Fourth Chamber (Extended Composition), sitting with five Judges: | Mr Legal, President of the Chamber, Ms Wiszniewska-Białecka, Mr Vadapalas, Mr Moavero Milanesi and Mr Wahl, Judges; |
| --- | --- | --- |

to the Fourth Chamber (Extended Composition), sitting with five Judges:

Mr Legal, President of the Chamber, Ms Wiszniewska-Białecka, Mr Vadapalas, Mr Moavero Milanesi and Mr Wahl, Judges;

| | to the Fourth Chamber, sitting with three Judges: | Mr Legal, President of the Chamber






  a) | Mr Vadapalas and Mr Wahl, Judges |
| --- | --- | --- | --- |

to the Fourth Chamber, sitting with three Judges:

Mr Legal, President of the Chamber

a)

Mr Vadapalas and Mr Wahl, Judges

| b) | Ms Wiszniewska-Białecka and Mr Moavero Milanesi, Judges |
| --- | --- |

b)

Ms Wiszniewska-Białecka and Mr Moavero Milanesi, Judges

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/19 |
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C 261/19

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Action brought on 4 August 2006 — Total and Elf Aquitaine v Commission

(Case T-206/06)

(2006/C 261/37)

Language of the case: French

Parties

Applicants: Total SA and Elf Aquitaine (Courbevoie, France) (represented by: E. Morgan de Rivery, lawyer, and S. Thibault-Liger, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | principally, annul Articles 1(c) and (d), 2(b), 3 and 4 of Commission Decision C(2006) 2098 final of 31 May 2006; |
| --- | --- |

—

principally, annul Articles 1(c) and (d), 2(b), 3 and 4 of Commission Decision C(2006) 2098 final of 31 May 2006;

| — | in the alternative, amend Article 2(b) of Commission Decision C(2006) 2098 final of 31 May 2006, in so far as it imposes jointly and severally on Arkema SA, Altuglas International SA and Altumax Europe SAS a fine of EUR 219.13125 million, for which Total SA and Elf Aquitaine are held jointly and severally liable for EUR 140.4 million and EUR 181.35 million respectively, and reduce the amount of the fine in question to an appropriate level; |
| --- | --- |

—

in the alternative, amend Article 2(b) of Commission Decision C(2006) 2098 final of 31 May 2006, in so far as it imposes jointly and severally on Arkema SA, Altuglas International SA and Altumax Europe SAS a fine of EUR 219.13125 million, for which Total SA and Elf Aquitaine are held jointly and severally liable for EUR 140.4 million and EUR 181.35 million respectively, and reduce the amount of the fine in question to an appropriate level;

| — | in any event, order the Commission to pay all the costs. |
| --- | --- |

—

in any event, order the Commission to pay all the costs.

Pleas in law and main arguments

By the present action, the applicants seek the annulment in part of Commission Decision C(2006) 2098 final of 31 May 2006, by which the Commission found that the undertakings to which the decision was addressed, which included the applicants, infringed Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.645 — Methacrylates) by participating in a complex of agreements and concerted practices in the methacrylates sector consisting in discussions on prices, the conclusion, implementation and monitoring of price agreements, exchanges of commercially important information and confidential information on markets and/or undertakings as well as the participation in regular meetings and other contacts to facilitate the infringement. In the alternative, they seek the reduction of the amount of the fine imposed on their subsidiary for which they are held jointly and severally liable.

The main claim is based on nine pleas for annulment.

The first plea alleges an infringement of the rights of the defence and the principle of the presumption of innocence. The applicants submit that the contested decision was adopted following an administrative procedure during which they could not mount a useful defence to the extent that the Commission did not discharge its burden of proof, thus ignoring the principle of equality of arms.

In the second plea, they submit that the contested decision ignored the obligation to state reasons, which is made even greater, according to the applicants, by the alleged novelty of the position adopted by the Commission. They point out that the contested decision, in so far as it censures them for the infringement at issue committed by their subsidiary, bases the imputation of responsibility solely on the assumption of a determining influence of the applicants on their subsidiary on the ground that they hold virtually all of the subsidiary's share capital, without any consideration of facts that might support or refute this assumption. Furthermore, the applicants submit that the contested decision contains a number of contradictions that result from confusion between the concept of an undertaking/economic entity responsible for an infringement and the concept of a legal entity to which a decision is addressed. In the context of this plea, the applicants also complain that the Commission failed to respond sufficiently to their arguments regarding the independence of their subsidiary.

By the third plea, the applicants point out that in its decision the Commission acted in breach of the unitary nature of the concept of an undertaking within the meaning of Article 81 EC and Article 23(2) of Regulation No 1/2003 (1).

In the fourth plea, the applicants claim that the Commission infringed the rules governing whether breaches committed by a subsidiary can be imputed to its parent company. The applicants submit that the Commission disregarded the limits of its power as regards determining imputability by adopting an interpretation of the case-law relating to imputability which was incorrect and went against its decision-making practice. According to the applicants, the Commission also acted in breach of the principle of the independence of legal persons.

The fifth plea alleges infringement of the essential principles recognised by all the Member States and which form an integral part of the Community legal order such as the principle of non-discrimination, the principle of liability for one's own acts, the principle of the individual nature of penalties and the principle of legality.

In the sixth plea, the applicants submit that the Commission infringed the principle of good administration.

The seventh plea alleges infringement by the Commission of the principle of legal certainty on the part of the applicants.

By the eighth plea, the applicants contend that the contested decision constitutes a misuse of powers in that it holds them liable for the cartel at issue and orders them severally with their subsidiary to pay the fine.

In their ninth plea, the applicants consider that the Commission infringed certain fundamental principles that govern the calculation of fines such as the principle of equal treatment in so far as it did not apply a reduction of 25 % to the starting amount of the fine imposed on the applicants, whereas it did apply it to another undertaking to which the contested decision was addressed because of a lack of knowledge of the overall infringement. The applicants also allege infringement of the fundamental principles of the presumption of innocence and legal certainty which result, according to them, from a disregard for the limits placed on the Commission's power regarding the taking into account of deterrent effect.

In the alternative, the applicants consider that the fine imposed on their subsidiary, and for which they are held jointly and severally liable, should be reduced to a fair level. They seek to obtain a reduction of 25 % in the starting amount of the fine because of their lack of knowledge of the infringement and also to rely on mitigating circumstances in that they were ordered to pay large fines almost simultaneously in two similar cases.

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(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1)

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/20 |
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Action brought on 4 August 2006 — Europig v OHIM (EUROPIG)

(Case T-207/06)

(2006/C 261/38)

Language in which the application was lodged: French

Parties

Applicant: Europig (Josselin, France) (represented by: D. Masson, lawyer)

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

Form of order sought

| — | annul the contested decision of the Board of Appeal of 31 May 2006 (R 1425/2005-4); |
| --- | --- |

—

annul the contested decision of the Board of Appeal of 31 May 2006 (R 1425/2005-4);

| — | order OHIM to pay the costs in their entirety. |
| --- | --- |

—

order OHIM to pay the costs in their entirety.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘EUROPIG’, for goods in Classes 29 and 30 (Application No 3 816 691)

Decision of the examiner: Refusal of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c), (2) and (3) of Council Regulation No 40/94. The applicant claims that the mark applied for is not descriptive of the goods designated, is fully distinctive and that, in any event, the distinctive character of the name 'Europig' has been acquired through use.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/20 |
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28.10.2006

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C 261/20

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Action brought on 26 August 2006 — Budějovický Budvar v OHIM — Anheuser-Busch (BUD)

(Case T-225/06)

(2006/C 261/39)

Language in which the application was lodged: French

Parties

Applicant: Budějovický Budvar, národní podnik (České Budějovice, Czech Republic) (represented by: F. Fajgenbaum, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Anheuser-Busch Incorporated

Form of order sought

| — | annul the contested decision of 14 June 2006 of the Second Board of Appeal of OHIM; |
| --- | --- |

—

annul the contested decision of 14 June 2006 of the Second Board of Appeal of OHIM;

| — | reject the application for registration of the word mark ‘BUD’ No 1 603 539 to designate goods in Classes 32 and 33; |
| --- | --- |

—

reject the application for registration of the word mark ‘BUD’ No 1 603 539 to designate goods in Classes 32 and 33;

| — | send the decision of the Court of First Instance to OHIM; |
| --- | --- |

—

send the decision of the Court of First Instance to OHIM;

| — | order Anheuser-Busch to pay all the costs and expenses. |
| --- | --- |

—

order Anheuser-Busch to pay all the costs and expenses.

Pleas in law and main arguments

Applicant for a Community trade mark: Anheuser-Busch Incorporated

Community trade mark concerned: Word mark ‘BUD’ for goods in Classes 32 and 33 — Application No 1 603 539

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: Protected designation of origin ‘BUD’ to designate beer

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 62(1) of Regulation No 40/94 (1) and Article 20 of implementing Regulation No 2868/95 (2) in that the Board of Appeal is not competent to rule on the validity of the designation of origin invoked by the applicant in the context of its opposition. It also submits that the sign ‘BUD’ constitutes a designation of origin, protected in both France and Austria. The applicant moreover invokes misapplication of Article 8(4) of Regulation No 40/94 in that, in its view, the designation of origin ‘BUD’ is indeed a sign used in the course of trade.

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

(2)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1)

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/21 |
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28.10.2006

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Official Journal of the European Union

C 261/21

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Action brought on 29 August 2006 — REWE-Zentral v OHIM (Port Louis)

(Case T-230/06)

(2006/C 261/40)

Language of the case: German

Parties

Applicant: REWE-Zentral AG (Cologne, Germany) (represented by M. Kinkeldey and A. Lehmann, lawyers)

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

Form of order sought

| — | annulment of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 June 2006 — Case R 25/2006-1 — with regard to Community trade mark application no. 003 664 133 PORT LOUIS; |
| --- | --- |

—

annulment of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 June 2006 — Case R 25/2006-1 — with regard to Community trade mark application no. 003 664 133 PORT LOUIS;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘Port Louis’ for goods in Classes 18, 24 and 25 (application no. 366 4133).

Decision of the Examiner: Rejection of the application.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1) as the mark for which registration is sought is capable of registration. Furthermore, the applicant submits that the right to a fair hearing has been infringed.

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

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/21 |
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28.10.2006

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Official Journal of the European Union

C 261/21

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Action brought on 30 August 2006 — Kingdom of the Netherlands v Commission

(Case T-231/06)

(2006/C 261/41)

Language of the case: Dutch

Parties

Applicant: Kingdom of the Netherlands (represented by: H.G. Sevenster and D.J.M. de Grave, Agents)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Decision C(2006) final of 22 June 2006 concerning the ad hoc measures implemented by the Netherlands for the purpose of financing public broadcasters in the Netherlands in relation to the State aid case No C 2/2004 (ex NN 170/2003), with the exception of Article 1(3) thereof; |
| --- | --- |

—

Annul Commission Decision C(2006) final of 22 June 2006 concerning the ad hoc measures implemented by the Netherlands for the purpose of financing public broadcasters in the Netherlands in relation to the State aid case No C 2/2004 (ex NN 170/2003), with the exception of Article 1(3) thereof;

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

—

Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant first alleges a breach of Article 88(2) EC and of the rights of the defence by reason of the fact that, in its decision, the Commission has substantially departed from the decision of 3 February 2004 (1) by which it initiated the formal investigation. The applicant goes on to submit that the subject-matter of the investigation and the method of calculation for determining the excess compensation have been altered.

Secondly, the applicant claims that there has been a breach of Article 88(1), (2) and (3) EC, of Article 1(b) of Regulation No 659/1999 (2) and Article 253 EC on the ground that the Commission incorrectly construed and applied the concepts of new aid and existing aid.

The applicant submits that the Commission erred in classifying payments from specific funds and reserves as new aid. By so doing, it argues, the Commission failed to take account of the fact that such payments, in the same way as ordinary payments to public broadcasters, constitute part of media budget and do not amount to additional public funds. The applicant argues that the only difference, namely that these payments are made available for specific purposes, does not amount to a reason for distinguishing these payments from the rest of public financing.

The applicant goes on to submit that the Commission incorrectly applies the notion of existing aid by classifying as new aid to the NOS the repayment of part of the reserves of the separate public regional broadcasters to a coordinating body, the NOS. According to the applicant, the reserves in question arose from the annual financing, which constitutes existing aid, and did not lose their character as existing aid simply by reason of the transfer to the NOS.

By way of alternative submission, the applicant alleges a breach of Article 86(2) EC, a manifest misappraisal of the facts, and a breach of Article 253 EC by reason of the manner in which the Commission calculated the overcompensation of the public broadcasters.

According to the applicant, the Commission was wrong to decide that the financing failed to comply with the principle of proportionality. The applicant states that the Commission had initially established that the financing did not lead to distortions of competition on commercial markets. There can for that reason be no question, the applicant submits, of overcompensation and no reimbursement is therefore necessary.

The Commission also fixed the amount to be claimed back from the NOS's Broadcasting Reserve Fund. According to the applicant, however, the Commission thereby based itself on the presumption that this amount was still retained by the NOS as a reserve, whereas in fact it had already been spent to a large degree, in accordance with the applicable conditions.

The Commission also established that the amount in reserves which the separate broadcasters had transferred to the NOS had to be recovered in full. The applicant submits that, in so doing, the Commission, without giving reasons, departed from its established conduct of allowing overcompensation of up to 10 %.

---

(1)  OJ 2004 C 61, p. 8.

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

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/22 |
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28.10.2006

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Official Journal of the European Union

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Action brought on 28 August 2006 — Eyropaïki Dynamiki v Commission

(Case T-232/06)

(2006/C 261/42)

Language of the case: English

Parties

Applicant: Eyropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis and N. Keramidas, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annulment of the decision of DG TAXUD to evaluate the applicant's bid as not successful and award the contract to the successful contractor; |
| --- | --- |

—

Annulment of the decision of DG TAXUD to evaluate the applicant's bid as not successful and award the contract to the successful contractor;

| — | order DG TAXUD to pay the applicant's legal and other costs and expenses incurred in connection with this application, even if the current application is rejected; |
| --- | --- |

—

order DG TAXUD to pay the applicant's legal and other costs and expenses incurred in connection with this application, even if the current application is rejected;

| — | order DG TAXUD to pay applicant's damages suffered on account of the tendering procedure in question. |
| --- | --- |

—

order DG TAXUD to pay applicant's damages suffered on account of the tendering procedure in question.

Pleas in law and main arguments

By means of its application, the applicant seeks annulment of DG TAXUD's decision of 19 June 2006, rejecting its bid filed in response to the open Call for Tenders TAXUD/2005/AO-001 for specification, development, maintenance and support of customs IT services relating to projects of the DG-TAXUD ‘CUST-DEV’ (OJ 2005/S 117-115222) and awarding the same Call for Tender to another bidder.

In support of its claims the applicant puts forward that, in the framework of the said tendering procedure, DG TAXUD failed to respect the procedural requirements set out in the Financial Regulation and its Implementing Rules, thus resulting in unequal treatment of tenderers and violation of principles of transparency and sound administration. Moreover, DG TAXUD's decision allegedly contained manifest errors of assessment and according to the applicant, by far exceeded the discretion that European Institutions dispose of when evaluating tenders.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/23 |
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28.10.2006

EN

Official Journal of the European Union

C 261/23

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Action brought on 26 August 2006 — Casa Editorial El Tiempo v OHIM –Instituto Nacional de Meteorología (EL TIEMPO)

(Case T-233/06)

(2006/C 261/43)

Language in which the application was lodged: Spanish

Parties

Applicant: Casa Editorial El Tiempo SA (Bogotá, Colombia) (represented by: A. Fernández Lerroux, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Instituto Nacional de Meteorología

Form of order sought

| — | annul the decision of the Fourth Board of Appeal of OHIM of 22 June 2006 in Case R-760/2005-4; |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal of OHIM of 22 June 2006 in Case R-760/2005-4;

| — | order the defendant and the other party before the Board of Appeal to pay the costs. |
| --- | --- |

—

order the defendant and the other party before the Board of Appeal to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Casa Editorial El Tiempo SA

Community trade mark concerned: Word mark EL TIEMPO (application No 1685056) for goods and services in Classes 16, 35, 38 and 41

Proprietor of the mark or sign cited in the opposition proceedings: Instituto Nacional de Meteorología

Mark or sign cited in opposition: National word marks EL TIEMPO for publications (unregistered, but well-known), TELETIEMPO for goods in Class 16 (No 1902923) and services in Class 38 (No 2217494, and TELETIEMPO INSTITUTO NACIONAL DE METEOROLOGÍA for services in Classes 35 (No 2217493) and 41 (No 2217492)

Decision of the Opposition Division: Opposition upheld and refusal of the application for a Community trade mark

Decision of the Board of Appeal: Rejection of the opposition in respect of the following services: ‘advertising; business management; business administration; office functions’ (Class 35) and ‘entertainment; sporting and cultural activities’ (Class 41)

Pleas in law: Misapplication of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/23 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/23

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Action brought on 4 September 2006 — Torresan v OHIM — Klosterbrauerei Weissenohe (CANNABIS)

(Case T-234/06)

(2006/C 261/44)

Language in which the application was lodged: Italian

Parties

Applicant: Giampietro Torresan (Schonenfels, Switzerland) (represented by: Gianluca Recher, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Klosterbrauerei Weissenohe GmbH & Co. KG

Form of order sought

| — | annul the decision of the Second Board of Appeal of 29 June 2006 in proceedings R 517/2005-2, notified by fax of 5 July 2006, and confirm the registration of the Community trade mark CANNABIS for Classes 32 and 33; |
| --- | --- |

—

annul the decision of the Second Board of Appeal of 29 June 2006 in proceedings R 517/2005-2, notified by fax of 5 July 2006, and confirm the registration of the Community trade mark CANNABIS for Classes 32 and 33;

| — | in any case, order the costs of all of the proceedings to be reimbursed, including those of the previous two appeals before OHIM. |
| --- | --- |

—

in any case, order the costs of all of the proceedings to be reimbursed, including those of the previous two appeals before OHIM.

Pleas in law and main arguments

Registered Community trade mark in respect of which a declaration of invalidity has been sought: Word mark ‘CANNABIS’ (application for registration No 1.073.349), for goods and services in Classes 32, 33 and 42.

Proprietor of the Community trade mark: The applicant.

Applicant for the declaration of invalidity: Klosterbrauerei Weissenohe GmbH & Co. KG.

Trade mark right of applicant for the declaration: The applicant for the declaration of invalidity does not claim any trade mark right. The declaration of invalidity is applied for in respect of goods in Classes 32 (beer) and 33 (wine, spirits, liqueurs, sparkling wine, champagne).

Decision of the Cancellation Division: Application for declaration of invalidity partially granted, annulment of the registration of the Community trade mark as regards the products claimed in Classes 32 and 33.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Infringement and misapplication of Article 7(1)(c) of Regulation (EC) No 40/94 on the Community trade mark, and contradiction in the grounds of the contested decision.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/24 |
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28.10.2006

EN

Official Journal of the European Union

C 261/24

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Action brought on 30 August 2006 — Austrian Relief Program v Commission

(Case T-235/06)

(2006/C 261/45)

Language of the case: German

Parties

Applicant: Austrian Relief Program– Verein für Not- und Katastrophenhilfe (Innsbruck, Austria) (represented by: C. Leyroutz, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | annul Debit Note No 3 240 802 998 of 4 May 2006; and |
| --- | --- |

—

annul Debit Note No 3 240 802 998 of 4 May 2006; and

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant was selected by the Commission to carry out, within framework of the Obnova programme financed by the European Union, a project in Serbia on the basis of the contract signed on 2 April 1998 (‘the Obnova Contract’). By letter of 4 May 2006 the Commission requested the applicant to repay the whole amount agreed under that contract. By the present action, the applicant challenges this decision.

The applicant alleges, first of all, that the Commission was not competent to adopt the contested decision, on the ground that jurisdiction to hear disputes arising from the Obnova Contract lies with the competent court in Brussels.

The applicant further claims that the defendant infringed essential procedural rules. In particular, the applicant's right to a fair hearing was not granted and the obligation to state reasons under Article 253 EC was infringed. In this connection the applicant criticises also the properly to establish the facts.

Finally, the applicant alleges that the defendant abused its discretion by seeking repayment of the whole amount agreed under the Obnova Contract, despite the fact that the terms of the contract were properly fulfilled and the individual projects properly implemented.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/24 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/24

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Action brought on 1 September 2006 — Landtag Schleswig-Holstein v Commission

(Case T-236/06)

(2006/C 261/46)

Language of the case: German

Parties

Applicant: Landtag Schleswig-Holstein (Kiel, Germany) (represented by: S.R. Laskowski and J. Caspar)

Defendant: Commission of the European Communities

Form of order sought

| — | suspend the proceedings, in so far as the European Court of Justice has not yet ruled on the dispute pending before it in the same case.
  In so far as the European Court of Justice declares that it has no jurisdiction and refers the case back to the Court of First Instance pursuant to Article 54 of the Statute of the Court of Justice; |
| --- | --- |

—

suspend the proceedings, in so far as the European Court of Justice has not yet ruled on the dispute pending before it in the same case.

In so far as the European Court of Justice declares that it has no jurisdiction and refers the case back to the Court of First Instance pursuant to Article 54 of the Statute of the Court of Justice;

| — | annul the Commission decisions of 10 March 2006 and 23 June 2006; and |
| --- | --- |

—

annul the Commission decisions of 10 March 2006 and 23 June 2006; and

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

In the contested decision, the Commission refused the applicant's request for access to document SEK (2005) 420 on the basis of the second indent of Article 4(2) of the transparency regulation (1). This document contains a legal analysis of the Community's competence in the field of the retention of personal data by operators of electronic communications networks.

The applicant alleges, first, breach of Article 10 EC in conjunction with the second paragraph of Article 1 EU. The applicant takes the view that the Commission is under an obligation to grant it access to the document which it has applied for in the framework of the reciprocal duties of genuine cooperation in accordance with the principle of transparency, on the ground that there is a strong public and parliamentary interest in full disclosure of this document.

The applicant further alleges breach of Article 255 EC and Article 2(1) of the transparency regulation. It submits in this regard that the Commission was wrong to base its refusal to grant access to the document applied for on the second indent of Article 4(2) of the transparency regulation, since disclosure of the document would not have prejudiced the Commission's legal advice. The defendant therefore incorrectly exercised its discretion.

---

(1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/25 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/25

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Action brought on 7 September 2006 — Reitz and von Gadomski v OHIM (CMD-CLINIC)

(Case T-241/06)

(2006/C 261/47)

Language in which the application was lodged: German

Parties

Applicants: J. Reitz (Aumühle, Germany) and B. von Gadomski (Hamburg, Germany) (represented by: U. Poser, lawyer)

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

Form of order sought

| — | annul the decision of the Fourth Board of Appeal of 6 July 2006 (R0372/2006-4); |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal of 6 July 2006 (R0372/2006-4);

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘CMD-CLINIC’ in respect of goods and services in Classes 5, 10 and 44 (Application No 3 661 337).

Decision of the Examiner: Partial refusal to register.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: The contested decision is unlawful inasmuch as registration was wrongly refused pursuant to Article 7(1)(c) of Regulation (EC) No 40/94 (1) on the basis that the mark applied for is descriptive and pursuant to Article 7(1)(b) thereof on the ground that it lacks distinctiveness.

---

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

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/25 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/25

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Action brought on 5 September 2006 — Cabrera Sánchez v OHIM — Industrias Cárnicas Valle (El charcutero artesano)

(Case T-242/06)

(2006/C 261/48)

Language in which the application was lodged: Spanish

Parties

Applicant: Miguel Cabrera Sánchez (Móstoles, Spain) (represented by: J. A. Calderón Chavero and T. Villate Consonni, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Industrias Cárnicas Valle SA

Form of order sought

| — | annul the decision of the First Board of Appeal of OHIM of 16 June 2006 in Case R-790/2005-1; |
| --- | --- |

—

annul the decision of the First Board of Appeal of OHIM of 16 June 2006 in Case R-790/2005-1;

| — | annul Decision 2239/2005 in opposition No 637 647; |
| --- | --- |

—

annul Decision 2239/2005 in opposition No 637 647;

| — | order the Opposition Division to refuse in full registration of the mark concerned; |
| --- | --- |

—

order the Opposition Division to refuse in full registration of the mark concerned;

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

—

order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Industrias Cárnicas Valle SA

Community trade mark concerned: Figurative colour mark EL CHARCUTERO ARTESANO (Application No 2 823 193) for goods in Class 29

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: National figurative mark (No 2 047 511) EL CHARCUTERO for goods in Class 29

Decision of the Opposition Division: Rejection of the opposition and registration of the mark applied for

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Misapplication of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/26 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/26

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Action brought on 4 September 2006 — Euro-Information v OHIM (CYBERGUICHET )

(Case T-245/06)

(2006/C 261/49)

Language in which the application was lodged: French

Parties

Applicant: Européenne de traitement de l'information SAS (Euro-Information) (Strasbourg, France) (represented by: P. Greffe, A. Jacquet and J. Schouman, lawyers)

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

Form of order sought by the applicant

| — | annulment of the whole of the decision of the First Board of Appeal of OHIM of 5 July 2006, Case R 67/2006-1, which refused the registration of CYBERGUICHET as a Community trade mark under application No 4 114 575 in respect of all the goods and services claimed in Classes 9, 36 and 38; |
| --- | --- |

—

annulment of the whole of the decision of the First Board of Appeal of OHIM of 5 July 2006, Case R 67/2006-1, which refused the registration of CYBERGUICHET as a Community trade mark under application No 4 114 575 in respect of all the goods and services claimed in Classes 9, 36 and 38;

| — | registration of CYBERGUICHET as a Community trade mark under application No 4 114 575 in respect of all the goods and services claimed. |
| --- | --- |

—

registration of CYBERGUICHET as a Community trade mark under application No 4 114 575 in respect of all the goods and services claimed.

Pleas in law and main arguments

Community trade mark concerned: Work mark ‘CYBERGUICHET’ for goods and services in Classes 9, 36 and 38 (application No 4 114 575)

Decision of the examiner: Refusal of registration

Decision of the Board of Appeal: Dismissal of appeal

Pleas in law: The applicant claims that, contrary to that which the Board of Appeal of OHIM stated in the contested decision, its trade mark is arbitrary and has a sufficiently distinctive character as required by Council Regulation No 40/94 (1) in relation to the goods and services claimed.

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

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/26 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/26

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Action brought on 8 September 2006 — Redcats v OHIM — Revert & Cía (REVERIE)

(Case T-246/06)

(2006/C 261/50)

Language in which the application was lodged: English

Parties

Applicant: Redcats SA (Roubaix, France) (represented by: A. Bertrand, lawyer)

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

Other party to the proceedings before the Board of Appeal: Manuel Revert y Cia SA (Onteniente, Spain)

Form of order sought

| — | [...] Thus the contested decision of the Board of Appeal of the OHIM must be reversed. |
| --- | --- |

—

[...] Thus the contested decision of the Board of Appeal of the OHIM must be reversed.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘REVERIE’ for goods in classes 16, 20 and 24 — application No 2 146 447

Proprietor of the mark or sign cited in the opposition proceedings: Manuel Revert y Cía., SA

Mark or sign cited: The Community figurative mark ‘REVERT’ for goods and services in classes 24, 25 and 39

Decision of the Opposition Division: Opposition upheld in relation to the contested goods in class 24

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The conflicting trade marks have no similarities from a visual, phonetic and conceptual point of view for Spanish, French or English speaking consumers. The fact that the earlier trade mark and the trade mark applied for cover the same products does therefore not create a risk of confusion in the mind of the public.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/27 |
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28.10.2006

EN

Official Journal of the European Union

C 261/27

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Appeal brought on 7 September 2006 by Carlos Sanchez Ferriz against the judgment of the Civil Service Tribunal delivered on 28 June 2006 in Case F-19/05 Sanchez Ferriz v Commission

(Case T-247/06 P)

(2006/C 261/51)

Language of the case: French

Parties

Appellant: Carlos Sanchez Ferriz (Brussels, Belgium) (represented by F. Frabetti, lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

| — | set aside the judgment of the Civil Service Tribunal of 28 June 2006 in Case F-19/05; |
| --- | --- |

—

set aside the judgment of the Civil Service Tribunal of 28 June 2006 in Case F-19/05;

| — | give a ruling on costs, fees and disbursements and order the Commission to pay them. |
| --- | --- |

—

give a ruling on costs, fees and disbursements and order the Commission to pay them.

Pleas in law and main arguments

In his appeal, the appellant claims that the Tribunal committed procedural irregularities when it considered the plea alleging infringement of the principle of non-discrimination in that it failed to examine the substance of the case of alleged discrimination in the application of the rule establishing a weighting of the points in a career development report, as raised by the appellant in his action.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/27 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/27

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Action brought on 11 September 2006 — Professional Golfers' Association v OHIM — Ladies Professional Golf Association (LPGA)

(Case T-248/06)

(2006/C 261/52)

Language in which the application was lodged: English

Parties

Applicant: The Professional Golfers' Association Limited (Sutton Coldfield, United Kingdom) (represented by: D. McFarland, Barrister)

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

Other party to the proceedings before the Board of Appeal: Ladies Professional Golf Association (Corporation) (Daytona Beach, USA)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of OHIM of 11 July 2006 in Case number R1087/2005-2 in its entirety on the grounds that Articles 73 and 74 of Council Regulation No 40/94 were breached; and |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of OHIM of 11 July 2006 in Case number R1087/2005-2 in its entirety on the grounds that Articles 73 and 74 of Council Regulation No 40/94 were breached; and

| — | order the case to be referred back to the Board of Appeal and be reheard by a different panel of judges from those who deliberated in the decision issued on 11 July 2006; |
| --- | --- |

—

order the case to be referred back to the Board of Appeal and be reheard by a different panel of judges from those who deliberated in the decision issued on 11 July 2006;

or, in the alternative, if the Court finds that Articles 73 and 74 of Council Regulation 40/94 were not breached:

| — | overturn the decision of the Second Board of Appeal of OHIM of 11 July 2006 in Case number R1087/2005-2 and find in favour of The Professional Golfers' Association Limited;
  and |
| --- | --- |

—

overturn the decision of the Second Board of Appeal of OHIM of 11 July 2006 in Case number R1087/2005-2 and find in favour of The Professional Golfers' Association Limited;

and

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

—

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

Pleas in law and main arguments

Applicant for the Community trade mark: Ladies Professional Golf Association Corp.

Community trade mark concerned: The figurative mark ‘LPGA’ for goods and services in classes 25, 28 and 41 — application No 2 354 173

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited: The Community word mark ‘PGA’ for goods and services in classes 16, 25, 28, 37, 41 and 42

Decision of the Opposition Division: Rejection of the opposition in its entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Violation of Article 73 of Council Regulation No 40/94 as neither of the parties has the opportunity to comment on the results of the Internet research carried out by the Board of Appeal.

Violation of Article 74 of the regulation as the Board of Appeal took into account facts that had not been introduced or substantiated by the parties and did not take into account facts, evidence and arguments, which had been duly introduced by the applicant.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/28 |
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28.10.2006

EN

Official Journal of the European Union

C 261/28

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Action brought on 8 September 2006 — Niko Tube and Nyzhniodniprovskyi Tube Rolling Plant v Council

(Case T-249/06)

(2006/C 261/53)

Language of the case: English

Parties

Applicants: Nikopol Seamless Tubes Plant Closed Joint Stock Company (Niko Tube) (Nikopol, Ukraine) and Nyzhniodniprovskyi Tube Rolling Plant Open Joint Stock Company (Dnipropetrovsk, Ukraine) (represented by: H.-G. Kamann and P. Vander Schueren, lawyers)

Defendant: Council of the European Union

Form of order sought

| — | Annul the contested regulation as far as it concerns the applicants; |
| --- | --- |

—

Annul the contested regulation as far as it concerns the applicants;

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

—

order to Council to pay the costs.

Pleas in law and main arguments

The applicants, who are Ukrainian producers of seamless tubes and pipes, seek the annulment of Council Regulation No 954/2006 (1) imposing a definitive anti-dumping duty on imports of certain seamless pipes and tubes originating in among others Ukraine.

In support of their application, the applicants invoke that the Council:

| — | determined the normal value on the basis of a manifest error of assessment and contrary to the principle of non-discrimination by taking into account products that were not manufactured by the applicants; |
| --- | --- |

—

determined the normal value on the basis of a manifest error of assessment and contrary to the principle of non-discrimination by taking into account products that were not manufactured by the applicants;

| — | made a material injury determination in breach of Article 3 of the Basic Regulation (2) given that the Community producers did not fully cooperate; |
| --- | --- |

—

made a material injury determination in breach of Article 3 of the Basic Regulation (2) given that the Community producers did not fully cooperate;

| — | acted in breach of Article 5(4) of the Basic Regulation by not terminating the proceeding in light of the non-cooperation by the Community industry; |
| --- | --- |

—

acted in breach of Article 5(4) of the Basic Regulation by not terminating the proceeding in light of the non-cooperation by the Community industry;

| — | committed a manifest error of assessment under Article 2(10) of the Basic Regulation by deducting an assumed commission from the export price of the sales company Sepco; |
| --- | --- |

—

committed a manifest error of assessment under Article 2(10) of the Basic Regulation by deducting an assumed commission from the export price of the sales company Sepco;

| — | breached the principle of non-discrimination in considering and ultimately rejecting an offer of undertaking by the applicants; and |
| --- | --- |

—

breached the principle of non-discrimination in considering and ultimately rejecting an offer of undertaking by the applicants; and

| — | breached the rights of defence of the applicants and Article 253 EC by not adequately stating reasons for its decision. |
| --- | --- |

—

breached the rights of defence of the applicants and Article 253 EC by not adequately stating reasons for its decision.

---

(1)  Council Regulation (EC) No 954/2006 of 27 June 2006 imposing definitive anti-dumping duty on imports of certain seamless pipes and tubes, of iron or steel originating in Croatia, Romania, Russia and Ukraine, repealing Council Regulations (EC) No 2320/97 and (EC) No 348/2000, terminating the interim and expiry reviews of the anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating, inter alia, in Russia and Romania and terminating the interim reviews of the anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating, inter alia, in Russia and Romania and in Croatia and Ukraine (OJ 2006 L 175, p. 4).

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

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/28 |
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28.10.2006

EN

Official Journal of the European Union

C 261/28

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Action brought on 15 September 2006 — Radio Regenbogen Hörfunk in Baden v OHIM (RadioCom)

(Case T-254/06)

(2006/C 261/54)

Language of the case: German

Parties

Applicant: Radio Regenbogen Hörfunk in Baden GmbH & Co. KG (Mannheim, Germany) (represented by W.W. Göpfert, lawyer)

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

Form of order sought

| — | annul the decision of the First Board of Appeal of 7 July 2006, which was notified to the applicant on 17 July 2006; |
| --- | --- |

—

annul the decision of the First Board of Appeal of 7 July 2006, which was notified to the applicant on 17 July 2006;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘RadioCom’ for services in Classes 35, 38 and 41 — application no. 3 986 023.

Decision of the Examiner: Rejection of the application.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: The mark for which registration is sought is capable of being registered and the grounds for refusal in Article 7(1)(b) and (c) and Article 7(2) of Regulation (EC) No 40/94 (1) which the defendant put forward do not preclude registration.

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

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/29 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/29

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Action brought on 18 September 2006 — Neoperl Servisys v OHIM (HONEYCOMB)

(Case T-256/06)

(2006/C 261/55)

Language in which the application was lodged: German

Parties

Applicant: Neoperl Servisys AG (Reinach, Switzerland) (represented by: H. Börjes-Pestalozza, lawyer)

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

Form of order sought

| — | annul contested decision R1388/2005-4 and order the Office for Harmonisation in the Internal Market to publish Community trade mark application No 2 906 139 for the purpose of its registration; |
| --- | --- |

—

annul contested decision R1388/2005-4 and order the Office for Harmonisation in the Internal Market to publish Community trade mark application No 2 906 139 for the purpose of its registration;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘HONEYCOMB’ for goods in Class 11 — Application No 2 906 139.

Decision of the Examiner: Refusal of the application.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Breach of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1), because the sign applied for was assessed incorrectly both as a whole and in relation to its individual elements and the assessment of the relevant public was made subject to a clearly exaggerated perception of the public.

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

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/29 |
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28.10.2006

EN

Official Journal of the European Union

C 261/29

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Order of the Court of First Instance of 5 September 2006 — Borrekuil v Commission

(Case T-211/99) (1)

(2006/C 261/56)

Language of the case: Dutch

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

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(1)  OJ C 6, 8.1.2000.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/30 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/30

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Order of the Court of First Instance of 5 September 2006 — Autoservice Fermans Exclusive v Commission

(Case T-215/99) (1)

(2006/C 261/57)

Language of the case: Dutch

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

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(1)  OJ C 6, 8.1.2000.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/30 |
| --- | --- | --- | --- |

28.10.2006

EN

Official Journal of the European Union

C 261/30

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Order of the Court of First Instance of 5 September 2006 — Alofs v Commission

(Case T-239/99) (1)

(2006/C 261/58)

Language of the case: Dutch

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

---

(1)  OJ C 6, 8.1.2000.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/30 |
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Order of the Court of First Instance of 5 September 2006 — Jongste v Commission

(Case T-249/99) (1)

(2006/C 261/59)

Language of the case: Dutch

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

---

(1)  OJ C 6, 8.1.2000.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/30 |
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Order of the Court of First Instance of 5 September 2006 — Algemene service- en verkoopmaatschappij Arnhemse Poort v Commission

(Case T-265/99) (1)

(2006/C 261/60)

Language of the case: Dutch

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

---

(1)  OJ C 6, 8.1.2000.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/30 |
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C 261/30

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Order of the Court of First Instance of 5 September 2006 — Baltussen and Others v Commission

(Case T-13/00) (1)

(2006/C 261/61)

Language of the case: Dutch

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

---

(1)  OJ C 135, 13.5.2000.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/30 |
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Order of the Court of First Instance of 5 September 2006 — Auto-en Carrosseriebedrij Ambting and Others v Commission

(Case T-15/00) (1)

(2006/C 261/62)

Language of the case: Dutch

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

---

(1)  OJ C 135, 13.5.2000.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/31 |
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28.10.2006

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Official Journal of the European Union

C 261/31

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Order of the Court of First Instance of 7 September 2006 — Austria v Commission

(Case T-361/04) (1)

(2006/C 261/63)

Language of the case: German

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

---

(1)  OJ C 300, 4.12.2004.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/31 |
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Official Journal of the European Union

C 261/31

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Order of the Court of First Instance of 6 September 2006 — Micronas v OHIM (3D-Panorama)

(Case T-45/05) (1)

(2006/C 261/64)

Language of the case: German

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

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(1)  OJ C 93, 16.4.2005.

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Criteria for the assignment of cases to chambers

| 28.10.2006 | EN | Official Journal of the European Union | C 261/32 |
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(2006/C )

(2006/C 261/65)

On 20 September 2006, in accordance with Article 4 of Annex I to the Statute of the Court of Justice and Article 12 of the Rules of Procedure of the Court of First Instance, the Civil Service Tribunal decided to maintain in force until 30 September 2007 the following conditions for the assignment of cases to chambers:

| — | the First Chamber shall hear all cases, with the exception of those principally concerning questions of recruitment, assessment/promotion and final termination of service, which shall be heard by the Second Chamber; |
| --- | --- |

—

the First Chamber shall hear all cases, with the exception of those principally concerning questions of recruitment, assessment/promotion and final termination of service, which shall be heard by the Second Chamber;

| — | a number of cases shall be assigned to the Third Chamber, regardless of the subject-matter involved, at regular intervals to be determined at a plenary meeting of the Tribunal; |
| --- | --- |

—

a number of cases shall be assigned to the Third Chamber, regardless of the subject-matter involved, at regular intervals to be determined at a plenary meeting of the Tribunal;

| — | derogations from the above rules on assignment may be made for reasons of connections between cases and to ensure a balanced and reasonably varied workload within the Tribunal. |
| --- | --- |

—

derogations from the above rules on assignment may be made for reasons of connections between cases and to ensure a balanced and reasonably varied workload within the Tribunal.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/32 |
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C 261/32

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Designation of the judge to replace the President of the Civil Service Tribunal for the purpose of dealing with applications for interim measures

(2006/C 261/66)

On 20 September 2006, in accordance with Article 3(4) of Decision 2004/752 and Article 106 of the Rules of Procedure of the Court of First Instance, the Tribunal decided that, for the period from 1 October 2006 to 30 September 2007, Judge Kreppel, President of the First Chamber, shall replace the President of the Tribunal for the purpose of dealing with applications for interim measures in the event of the President's absence or his being prevented from attending.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/32 |
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28.10.2006

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Official Journal of the European Union

C 261/32

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Judgment of the Civil Service Tribunal (First Chamber) of 12 September 2006 — De Soeten v Council

(Case F-86/05) (1)

(Pension - Request for early retirement without reduction of pension entitlement - Rejection of the request)

(2006/C 261/67)

Language of the case: French

Parties

Applicant: Henders De Soeten (The Hague, Netherlands) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Council of the European Union (represented by: M. Simm and I. Sulce, Agents)

Re:

Annulment of the Council decision rejecting, under Article 9(2) of Annex VIII to the Staff Regulations, the applicant's request for early retirement without reduction of pension entitlement

Operative part of the judgment

The Tribunal:

| 1. | Annuls the decision of 5 October 2004 of the Council of the European Union rejecting Ms De Souten's request for early retirement without reduction of pension entitlement; |
| --- | --- |

1.

Annuls the decision of 5 October 2004 of the Council of the European Union rejecting Ms De Souten's request for early retirement without reduction of pension entitlement;

| 2. | Orders the Council of the European Union to pay the costs. |
| --- | --- |

2.

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

---

(1)  OJ C 296, 26.11.2005 (Case initially registered in the Court of First Instance of the European Communities under No T-336/05 and transferred to the European Union Civil Service Tribunal by order of 15.12.2005).

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/33 |
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28.10.2006

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Official Journal of the European Union

C 261/33

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Order of the Civil Service Tribunal of 19 September 2006 — Vienne and Others v Parliament

(Case F-22/06) (1)

(Refusal of assistance under Article 24 of the Staff Regulations - Transfer of pension rights acquired in Belgium - Inadmissibility)

(2006/C 261/68)

Language of the case: French

Parties

Applicants: Philippe Vienne (Bascharage, Luxembourg) and Others (represented by: G. Bounéou and F. Frabetti, lawyers)

Defendant: European Parliament (represented by: F. De Wachter, M. Mustapha-Pacha and K. Zejdova, Agents)

Re:

First, annulment of the European Parliament's decision rejecting the requests for assistance brought by the applicants in connection with the transfer of their pension rights acquired in Belgium and, secondly, an application for damages.

Operative part of the order

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

1.

The action is dismissed as manifestly inadmissible.

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

2.

Each party is to bear its own costs.

---

(1)  OJ C 108, 6.5.2006.

---

| 28.10.2006 | EN | Official Journal of the European Union | C 261/33 |
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28.10.2006

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Official Journal of the European Union

C 261/33

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Action brought on 21 July 2006 — Duyster v Commission

(Case F-80/06)

(2006/C 261/69)

Language of the case: Dutch

Parties

Applicant: Tineke Duyster (Oetrange, Luxembourg) (represented by: W.H.A.M. van den Muijsenbergh, lawyer)

Defendant: Commission of the European Communities

Form of order sought by the applicant

The applicant claims that the Court should:

| — | declare the action admissible or, in the alternative, in part admissible; |
| --- | --- |

—

declare the action admissible or, in the alternative, in part admissible;

| — | annul the Appointing Authority's decisions of 22 December 2005 and 11 May 2006 or, in the alternative, annul them in part; |
| --- | --- |

—

annul the Appointing Authority's decisions of 22 December 2005 and 11 May 2006 or, in the alternative, annul them in part;

| — | hold that no legal rule precludes the applicant from applying for her parental leave to be withdrawn in reliance on Article 2 of the General Provisions for Implementing Article 42a of the Staff Regulations relating to Parental Leave (‘GPI’); |
| --- | --- |

—

hold that no legal rule precludes the applicant from applying for her parental leave to be withdrawn in reliance on Article 2 of the General Provisions for Implementing Article 42a of the Staff Regulations relating to Parental Leave (‘GPI’);

| — | find that the defendant has advanced no valid argument or legal reason precluding the conclusion that the applicant is in active employment; |
| --- | --- |

—

find that the defendant has advanced no valid argument or legal reason precluding the conclusion that the applicant is in active employment;

| — | find that the defendant has advanced no argument for depriving the applicant of the benefits connected with the administrative position of active employment; |
| --- | --- |

—

find that the defendant has advanced no argument for depriving the applicant of the benefits connected with the administrative position of active employment;

| — | in the alternative, hold that no legal rule precludes the defendant from a balancing of interests, in which it applies Article 2(4) of the GPI and adopts a decision on that basis in respect of the withdrawal of parental leave; |
| --- | --- |

—

in the alternative, hold that no legal rule precludes the defendant from a balancing of interests, in which it applies Article 2(4) of the GPI and adopts a decision on that basis in respect of the withdrawal of parental leave;

| — | in the further alternative, uphold in part one or more of the above claims; |
| --- | --- |

—

in the further alternative, uphold in part one or more of the above claims;

| — | order the defendant to pay the costs, including those of the legal assistance relating to the decision adopted following the applicant's request of 6 December 2005. |
| --- | --- |

—

order the defendant to pay the costs, including those of the legal assistance relating to the decision adopted following the applicant's request of 6 December 2005.

Pleas in law and main arguments

In Cases F-51/05 (1) and F-18/06 (2), the applicant has already challenged the Commission's giving her parental leave for the period from 1 November 2004 to 30 April 2005 and, then, by letter of 17 November 2005, fixing 8 November 2004 as the date when the parental leave started.

On 6 December 2005, the applicant made a request based on, among others things, Article 90(1) of the Staff Regulations and on the GPI in respect of parental leave. She sought the annulment of the parental leave referred to in the Appointing Authority's letter. On 22 December 2005, the Appointing Authority's declared that request inadmissible. The applicant then lodged, on 14 February 2006, a complaint under Article 90(2) of the Staff Regulations against the decision of 22 December 2005. On 16 May 2006, the Appointing Authority also declared that complaint inadmissible in a decision of only a few lines.

In support of her action against the inadmissibility decisions, the applicant pleads, in particular: (i) mistakes of fact on which the decisions are based; (ii) infringement of the content and purpose of Article 90(1) and (2) of the Staff Regulations; (iii) contradictions; (iv) the decision's lack of clarity; (v) infringement of the content and purpose of Article 42a of the Staff Regulations; (vi) infringement of the content and purpose of Article 2 of the GPI; (vii) failure to follow the case-law; (viii) infringement of the content and purpose of Article 25 of the Staff Regulations; (ix) breach of the principles of proportionality, protection of legitimate expectations, equal treatment and legal certainty, as well as breach of the principle of balancing the relevant interests, non-compliance with the employer's duty to provide information and breach of the principle of sound administration; (x) lack of foundation for the Appointing Authority's statement that the contents of the applicant's request already forms part of Case F-51/05.

The applicant also puts forward the arguments by which she submits that it is possible to rule favourably on the substance of her request. She pleads, among other matters, new circumstances justifying the making of a further request (even with retrospective effect), the content and purpose of Article 42a of the Staff Regulations, the content of the GPI, in particular, Article 2(4) thereof, Articles 35, 36, 59 and 62 of the Staff Regulations and breach of the legal principles cited above under (x).

---

(1)  OJ C 217, 3.9.2005 (Case initially registered in the Court of First Instance of the European Communities under No T-249/05 and transferred to the European Union Civil Service Tribunal by order of 15.12.2005).

(2)  OJ C 154, 1.7.2006.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/34 |
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Action brought on 21 July 2006 — Duyster v Commission

(Case F-81/06)

(2006/C 261/70)

Language of the case: Dutch

Parties

Applicant: Tineke Duyster (Oetrange, Luxembourg) (represented by: W.H.A.M. van den Muijsenbergh, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Tribunal should:

| — | declare the appeal inadmissible in its entirety; |
| --- | --- |

—

declare the appeal inadmissible in its entirety;

| — | annul the decisions of the Appointing Authority of 8 November 2005 and of 11 May 2006; |
| --- | --- |

—

annul the decisions of the Appointing Authority of 8 November 2005 and of 11 May 2006;

| — | grant the applicant damages for the loss suffered; |
| --- | --- |

—

grant the applicant damages for the loss suffered;

| — | in the alternative, grant wholly or in part the forms of order sought above or adopt a decision granting the applicant's requests of 5 and 13 July 2005; |
| --- | --- |

—

in the alternative, grant wholly or in part the forms of order sought above or adopt a decision granting the applicant's requests of 5 and 13 July 2005;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

In Cases F-51/06 (1) and F-18/06 (2), the applicant has already challenged the fact that the Commission first granted her parental leave in respect of the period from 1 November 2004 to 30 April 2005 and then, by letter of 17 November 2005, fixed the starting date of her parental leave at 8 November 2004.

In this case, the applicant challenges the decisions by which the Commission rejected as inadmissible her requests submitted in order to obtain damages under Article 288 EC and Article 90(1) of the Staff Regulations of Officials, concerning approximately 50 objections relating to allegedly negligent acts committed by the Commission's departments.

In support of her action against the decisions of inadmissibility, the applicant alleges, inter alia: (i) that the decisions were based on incorrect facts (ii) infringement of the content and rationale of Article 90(1) and (2) of the Staff Regulations; (iii) that the decisions are contradictory; (iv) that the decisions lack clarity; (v) that the Appointing Authority is incorrectly interpreting and/or applying the case-law relating to Article 288 EC and Article 90 of the Staff Regulations; (vi) that the Appointing Authority uses misconceived arguments; (vii) infringement of the principles of proportionality, the protection of legitimate expectations, equal treatment and legal certainty, and infringement of the principle that different interests must be weighed against each other, failure to observe the employer's duty to provide information, and infringement of the principle of sound administration and the right to a legal remedy.

---

(1)  OJ C 217, 3.9.2005 (case initially registered before the Court of First Instance of the European Communities under number T-249/05 and transferred to the Civil Service Tribunal of the European Union by Order of 15.12.2005).

(2)  OJ C 154, 1.7.2006

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/35 |
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C 261/35

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Action brought on 4 September 2006 — Haelterman and Others v Commission

(Case F-102/06)

(2006/C 261/71)

Language of the case: French

Parties

Applicants: Geert Haelterman (Ninove, Belgium) and Others (represented by: A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annulment of the individual decisions rejecting the applicants' applications for the adoption by the Appointing Authority (AIPN) of transitional measures to guarantee, in connection with the 2005 and subsequent promotion procedures, equal treatment and their vested rights; |
| --- | --- |

—

Annulment of the individual decisions rejecting the applicants' applications for the adoption by the Appointing Authority (AIPN) of transitional measures to guarantee, in connection with the 2005 and subsequent promotion procedures, equal treatment and their vested rights;

| — | An order that the Commission of the European Communities pay the costs. |
| --- | --- |

—

An order that the Commission of the European Communities pay the costs.

Pleas in law and main arguments

In support of their action, the applicants rely on pleas in law identical to those pleaded in Case F-47/06. (1)

---

(1)  OJEU C 154, 1.07.2006, p. 25.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/35 |
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28.10.2006

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Official Journal of the European Union

C 261/35

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Action brought on 4 September 2006 — Blank and Others v Commission

(Case F-103/06)

(2006/C 261/72)

Language of the case: French

Parties

Applicants: Klaus Blank (St. Stevens-Woluwe, Belgium) and Others (represented by: S. Rodrigues and C. Bernard-Glanz, lawyers )

Defendant: Commission of the European Communities

Form of order sought

| — | Annulment of the refusal of the Appointing Authority (AIPN) to enter the applicants on the list of officials promoted to Grade A*10 in the 2005 promotion procedure, which decisions are to be implied from Administrative Notice No 85-2005 of 23 November 2005; |
| --- | --- |

—

Annulment of the refusal of the Appointing Authority (AIPN) to enter the applicants on the list of officials promoted to Grade A*10 in the 2005 promotion procedure, which decisions are to be implied from Administrative Notice No 85-2005 of 23 November 2005;

| — | Directions to the AIPN as to the effects of the annulment of the contested decisions and, in particular, reclassification of the applicants in Grade A*10, with retrospective effect from 1 March 2005, |
| --- | --- |

—

Directions to the AIPN as to the effects of the annulment of the contested decisions and, in particular, reclassification of the applicants in Grade A*10, with retrospective effect from 1 March 2005,

| — | In the alternative, as regards one of the applicants, first, a direction to the defendant to recognise him as being eligible, on his next promotion, for promotion to Grade A*10 and, second, to order the defendant to compensate the same applicant for the loss he suffered as a result of not being promoted to Grade A*10 from 1 March 2005; |
| --- | --- |

—

In the alternative, as regards one of the applicants, first, a direction to the defendant to recognise him as being eligible, on his next promotion, for promotion to Grade A*10 and, second, to order the defendant to compensate the same applicant for the loss he suffered as a result of not being promoted to Grade A*10 from 1 March 2005;

| — | An order that the defendant pay the costs. |
| --- | --- |

—

An order that the defendant pay the costs.

Pleas in law and main arguments

In support of their action, the applicants rely on pleas in law very similar to those pleaded in Case F-45/06. (1)

---

(1)  OJEU C 143, 17.06.2006, p. 39.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/35 |
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28.10.2006

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Official Journal of the European Union

C 261/35

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Action brought on 4 September 2006 — Arpaillange and Others v Commission

(Case F-104/06)

(2006/C 261/73)

Language of the case: French

Parties

Applicants: Joséphine Arpaillange (Santiago do Chile, Chile) and Others (represented by: S. Rodrigues and C. Bernard-Glanz, lawyers)

Defendant: Commission of the European Communities

Form of order sought by the applicants

The applicants claim that the Court should:

| — | annul the decisions of the authority authorised to conclude contracts stipulating the applicants' conditions of employment, as set out in their contracts as contract staff, on the ground that the number of years of professional experience recognised in their cases by the authority authorised to conclude contracts is less than the number of years' professional experience actually acquired by the applicants; |
| --- | --- |

—

annul the decisions of the authority authorised to conclude contracts stipulating the applicants' conditions of employment, as set out in their contracts as contract staff, on the ground that the number of years of professional experience recognised in their cases by the authority authorised to conclude contracts is less than the number of years' professional experience actually acquired by the applicants;

| — | give the authority authorised to conclude contracts directions as to the effects of the annulment of the contested decisions, and particularly the regrading of the applicants in the grade and step which take account of their actual professional experience and of their seniority as individual experts; |
| --- | --- |

—

give the authority authorised to conclude contracts directions as to the effects of the annulment of the contested decisions, and particularly the regrading of the applicants in the grade and step which take account of their actual professional experience and of their seniority as individual experts;

| — | convert, if appropriate, the applicants' contracts into contracts for an unlimited period; |
| --- | --- |

—

convert, if appropriate, the applicants' contracts into contracts for an unlimited period;

| — | order the defendant to pay the applicants the difference between the salary corresponding to the grade and step in which they were placed and the salary corresponding to the grade and step in which they should have been placed, with interest for delay in payment; |
| --- | --- |

—

order the defendant to pay the applicants the difference between the salary corresponding to the grade and step in which they were placed and the salary corresponding to the grade and step in which they should have been placed, with interest for delay in payment;

| — | in the alternative, order the defendant, first, to compensate the applicants for the loss they suffered, in terms of loss of income, because of their passage from the status of individual expert to that of contract staff, by the payment of a monthly compensatory allowance and, second, to pay to the applicants the difference between the salary which they have received since taking up their duties as contract staff and the salary plus the aforementioned allowance, with interest for delay in payment; |
| --- | --- |

—

in the alternative, order the defendant, first, to compensate the applicants for the loss they suffered, in terms of loss of income, because of their passage from the status of individual expert to that of contract staff, by the payment of a monthly compensatory allowance and, second, to pay to the applicants the difference between the salary which they have received since taking up their duties as contract staff and the salary plus the aforementioned allowance, with interest for delay in payment;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicants, after having worked for several years in Commission delegations outside the Community with the status of individual experts, were recruited with the status of contract staff, following the disappearance of the other status.

At the time of the applicants' grading, the Commission recognised them as having less professional experience than that which they submit they had actually gained, and, in any event, less than that which they were recognised as having acquired at the time of their recruitment as individual experts.

In support of their action, the applicants plead breach of the Conditions of employment of other servants of the European Communities (‘Conditions of Employment’) on the ground that Article 2 of the General Provisions for Implementing the procedures governing the engagement and the employment of contract staff of 7 April 2004 (‘GPI’) imposes a requirement for the engagement of contract staff — one year of appropriate professional experience — which is not required by Article 82 of the Conditions of Employment.

Furthermore, the applicants submit that, at the time of the evaluation of their professional experience, the Commission infringed the principles of legal certainty and the protection of legitimate expectations, was in breach of the duty to have regard for the interests of officials and made a manifest error of assessment.

Next, the applicants plead infringement of the principles of equal treatment and of non-discrimination on the grounds; first, that the GPI provide that staff having nearly 20 years of experience are graded in the same grade as staff having no more than seven years' experience; second, that contract staff covered by Article 3a of the Conditions of Employment, such as the applicants, and those covered by Article 3b of the Conditions of Employment are treated differently, in terms of possible grading on recruitment, and of developing their professional experience and career, whereas their situation is comparable; third, that compensation for loss of income, such as that which is provided for former local staff has not been provided for former individual experts.

Finally, the applicants allege breach of the principle of respect for vested rights, because of, first, a consequent reduction in their salary for identical duties and, second, the failure to take into account the years for which they had worked with the status of individual experts for the purposes of their grading in step and for the purposes of the conversion of their contracts as contract staff for a limited period into contracts for a fixed term.

---

| 28.10.2006 | EN | Official Journal of the European Union | C 261/36 |
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28.10.2006

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Official Journal of the European Union

C 261/36

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Action brought on 15 September 2006 — Berrisford v Commission

(Case F-107/06)

(2006/C 261/74)

Language of the case: French

Parties

Applicant: Michael Berrisford (Brussels, Belgium) (represented by: E. Boigelot, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Tribunal should:

| — | annul the decision not to include the applicant's name in the list of officials promoted from A*12 to A*13 in a ‘2005 promotion procedure’, and consequently not to promote the applicant, as published in Administrative Notice No 85-2005 of 23 November 2005, in so far as that decision was adopted although the applicant was wrongly awarded an insufficient number of priority points in that promotion procedure; |
| --- | --- |

—

annul the decision not to include the applicant's name in the list of officials promoted from A*12 to A*13 in a ‘2005 promotion procedure’, and consequently not to promote the applicant, as published in Administrative Notice No 85-2005 of 23 November 2005, in so far as that decision was adopted although the applicant was wrongly awarded an insufficient number of priority points in that promotion procedure;

| — | annul the decision of 6 June 2006 rejecting the complaint brought by the applicant on 21 February 2006 under No R/123/06, in accordance with Article 90(2) of the Staff Regulations; |
| --- | --- |

—

annul the decision of 6 June 2006 rejecting the complaint brought by the applicant on 21 February 2006 under No R/123/06, in accordance with Article 90(2) of the Staff Regulations;

| — | order the defendant to pay, by way of compensation for the material and non-material damage and harm to the applicant's career, the sum of EUR 25 000, with interest at the rate of 7 % per annum from 21 February 2006, the date of the complaint; |
| --- | --- |

—

order the defendant to pay, by way of compensation for the material and non-material damage and harm to the applicant's career, the sum of EUR 25 000, with interest at the rate of 7 % per annum from 21 February 2006, the date of the complaint;

| — | in any event, order the defendant to pay all the costs, in accordance with Article 87(2) of the Rules of Procedure of the Court of First Instance of the European Communities. |
| --- | --- |

—

in any event, order the defendant to pay all the costs, in accordance with Article 87(2) of the Rules of Procedure of the Court of First Instance of the European Communities.

Pleas in law and main arguments

In support of its action, the applicant puts forward three pleas, the first of which alleges infringement of Article 45 of the Staff Regulations, infringement of the General provisions implementing that article (GIP), infringement of Annex XIII to the Staff Regulations, infringement of the duty to give reasons and manifest errors of assessment. In particular, the applicant alleges that, despite his excellent merit appraisals and the fact that he was twice included in the ‘ex A4 reserve’ (of candidates considered deserving of promotion in the previous year's procedure but not promoted), he was not awarded the three transitional points provided for in Article 12(2)(c) of the GIP, or the four additional special priority points or even the one supplementary priority point awarded by his Directorate General and requested in the action brought before the Joint Promotion Committee for grade A officials. The applicant also puts forward the fact that the promotion rate of 5 % for A*12 officials was not reached.

The second plea is that the principles of equal opportunity, of equal treatment of staff and of non-discrimination were infringed. According to the applicant, both the content of the rules and their implementation in the light of the transitional decisions concerning officials in the grade A*12 ‘reserve’ are unfair and discriminatory in relation to the transitional measures adopted specifically for ‘reserve officials’ from other grades. In addition, he submits that there has been discrimination within grade A*12, because of the current existence within that grade of former A*11 officials promoted previously and who received in their rucksack four additional special ‘reserve’ points, in breach of the principles cited above.

The third plea alleges infringement of the principle of the protection of legitimate expectations, the principle of sound administration and the principle of the duty to have regard for the interests of officials. According to the applicant, despite the assurances given by the authorities, the applicant's status as an official twice included in the reserve and the earlier ‘second round’ system were not taken into account. In addition, in so far as the new promotion system was applied for the first time in 2005 with regard to officials of the applicant's grade, the applicant maintains that he was entitled to expect to be treated in the same way, in particular as regards the ‘reserve’, as officials of other grades, who benefited from transitional measures intended to alleviate the disadvantages caused by the transition from the old promotion system to the new.

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| 28.10.2006 | EN | Official Journal of the European Union | C 261/37 |
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28.10.2006

EN

Official Journal of the European Union

C 261/37

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Action brought on 18 September 2006 — Diomede Basili v Commission

(Case F-108/06)

(2006/C 261/75)

Language of the case: French

Parties

Applicant: Tamara Diomede Basili (Brussels, Belgium) (represented by: T. Bontinck and J. Feld, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Tribunal should:

| — | annul the career development report (CDR) notified to the applicant on 10 November 2005; |
| --- | --- |

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annul the career development report (CDR) notified to the applicant on 10 November 2005;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, a Commission official of grade AD 11, took part in the DG ECFIN Joint Evaluation Committee and in the Selection Board for competition COM/PA/04 during 2004. In her action, she challenges her CDR, in so far as it did not take into account the opinion of the ‘ad hoc working party and the staff representatives' suggestions for promotion’ laid down in Article 6(3)(c) of the general provisions implementing Article 43 of the Staff Regulations (GIP). In addition to the infringement of that provision of the GIP, the applicant alleges the infringement of Article 43 of the Staff Regulations and of Article 1 of Annex II to the Staff Regulations.

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III Notices

| 28.10.2006 | EN | Official Journal of the European Union | C 261/38 |
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28.10.2006

EN

Official Journal of the European Union

C 261/38

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(2006/C 261/76)

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

OJ C 249, 14.10.2006

Past publications

OJ C 237, 30.9.2006

OJ C 224, 16.9.2006

OJ C 212, 2.9.2006

OJ C 190, 12.8.2006

OJ C 178, 29.7.2006

OJ C 165, 15.7.2006

These texts are available on:

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

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