# Official Journal C 143/2006

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 143 |
| | |
| English edition | Information and Notices | Volume 4917 June 2006 |

ISSN 1725-2423

Official Journal

of the European Union

C 143

English edition

Information and Notices

Volume 4917 June 2006

---

| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2006/C 143/1 | Taking of the oath by a new Member of the Court of Justice | 1 |
| 2006/C 143/2 | Assumption of duties by a new Judge of the Court of Justice | 1 |
| 2006/C 143/3 | Decisions adopted by the Court of Justice at its general meeting on 16 May 2006 | 1 |
| 2006/C 143/4 | Lists for the purposes of determining the composition of the formations of the Court | 1 |
| 2006/C 143/5 | Case C-441/02: Judgment of the Court (First Chamber) of 27 April 2006 — Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Articles 8a and 48 of the EC Treaty (now, after amendment, Articles 18 EC and 39 EC) — Directives 64/221/EEC, 73/148/EEC and 90/364/EEC — Regulation (EEC) No 1612/68 — Freedom of movement for nationals of Member States — Public policy — Right to respect for family life — National legislation relating to the prohibition on residence and expulsion — Administrative practice — Criminal conviction — Expulsion) | 2 |
| 2006/C 143/6 | Joined Cases C-87/03 and C-100/03: Judgment of the Court (Third Chamber) of 30 March 2006 — Kingdom of Spain v Council of the European Union (Fisheries — Regulation distributing catch quotas among Member States — Act of accession of Spain — End of the transitional period — Requirement of relative stability — Principle of non-discrimination — New fishing opportunities) | 3 |
| 2006/C 143/7 | Case C-408/03: Judgment of the Court (Grand Chamber) of 23 March 2006 — Commission of the European Communities v Kingdom of Belgium (Failure to fulfil obligations — Breach of Community legislation on the right of residence of citizens of the Union — National legislation and administrative practice relating to the requirement of sufficient personal resources and the issuing of orders to leave the territory of the Member State concerned) | 3 |
| 2006/C 143/8 | Case C-436/03: Judgment of the Court (Grand Chamber) of 2 May 2006 — European Parliament v Council of the European Union (Action for annulment — Regulation (EC) No 1435/2003 — European Cooperative Society (SCE) — Choice of legal basis — Article 95 EC — Article 308 EC) | 4 |
| 2006/C 143/9 | Case C-451/03: Judgment of the Court (Third Chamber) of 30 March 2006 (reference for a preliminary ruling from the Corte d'appello di Milano) — Servizi Ausiliari Dottori Commercialisti Srl v Giuseppe Calafiori (Freedom of establishment — Freedom to provide services — Competition rules applicable to undertakings — State aid — Tax Advice Centres — Pursuit of certain tax advice and assistance activities — Exclusive right — Remuneration for such activities) | 4 |
| 2006/C 143/0 | Case C-551/03 P: Judgment of the Court (Third Chamber) of 6 April 2006 — General Motors BV (formerly General Motors Nederland BV and Opel Nederland BV) v Commission of the European Communities (Appeals — Agreements, decisions and concerted practices — Article 81 EC — Regulations (EEC) No 123/85 and (EC) No 1475/95 — Distribution of Opel motor vehicles — Partitioning of the market — Restrictions on exports — Restrictive bonus policy — Fine — Guidelines for the calculation of fines) | 5 |
| 2006/C 143/1 | Case C-36/04: Judgment of the Court (Second Chamber) of 30 March 2006 — Kingdom of Spain v Council of the European Union (Regulation (EC) No 1954/2003 — Articles 3, 4 and 6 — Management of the fishing effort — Community fishing areas and resources — Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties — Non-severability — Inadmissibility) | 5 |
| 2006/C 143/2 | Case C-46/04: Judgment of the Court (First Chamber) of 30 March 2006 (reference for a preliminary ruling from the Corte Suprema di Cassazione) — Aro Tubi Trafilerie SpA v Ministero dell'Economia e delle Finanze (Directive 69/335 — Indirect taxes on the raising of capital — National legislation providing for the charging, in the case of a reverse merger, of a proportional registration tax of 1 % of the value of such a transaction — Classification as capital duty — Increase in capital — Increase in the assets of the company — Increase in the value of shares — Provision of services by a member — Decision to merge made by the members of the member) | 6 |
| 2006/C 143/3 | Case C-96/04: Judgment of the Court (First Chamber) of 27 April 2006 (reference for a preliminary ruling from the Amtsgericht Niebüll) — Standesamt Stadt Niebüll v Stefan Grunkin, Dorothee Regina Paul (Reference for a preliminary ruling — Determination of a child's surname — Procedure to transfer that determination to one of the parents — Lack of jurisdiction of the Court) | 6 |
| 2006/C 143/4 | Joined Cases C-131/04 and C-257/04: Judgment of the Court (First Chamber) of 16 March 2006 (references for a preliminary ruling from the Court of Appeal, Employment Tribunal) — C.D. Robinson-Steele v R.D. Retail Services Ltd (C-131/04) — Michael Jason Clarke v Frank Staddon Ltd (C-257/04) and J.C. Caulfield, C.F. Caulfield, K.V. Barnes v Hanson Clay Products Ltd, formerly Marshalls Clay Products Ltd (C-257/04) (Social policy — Protection of the health and safety of workers — Directive 93/104/EC — Entitlement to paid annual leave — Inclusion of payment for annual leave in the hourly or daily remuneration (rolled-up holiday pay) | 7 |
| 2006/C 143/5 | Case C-184/04: Judgment of the Court (First Chamber) of 30 March 2006 (reference for a preliminary ruling from the Korkein hallinto-oikeus) — Uudenkaupungin kaupunki (VAT — Deduction of input tax — Capital goods — Immovable property — Adjustment of deductions) | 8 |
| 2006/C 143/6 | Case C-217/04: Judgment of the Court (Grand Chamber) of 2 May 2006 — United Kingdom of Great Britain and Northern Ireland v European Parliament and Council of the European Union (Regulation (EC) No 460/2004 — European Network and Information Security Agency — Choice of legal basis) | 8 |
| 2006/C 143/7 | Case C-245/04: Judgment of the Court (First Chamber) of 6 April 2006 (reference for a preliminary ruling from the Verwaltungsgerichtshof) — EMAG Handel Eder OHG v Finanzlandesdirektion für Kärnten (Preliminary references — Sixth VAT Directive — Article 8(1)(a) and (b), the first subparagraph of Article 28a(1)(a), Article 28b(A)(1) and the first subparagraph of Article 28c(A)(a) — Intra-Community dispatch or transport of goods — Supplies — Intra-Community acquisition of goods — Chain transactions — Place of transaction) | 9 |
| 2006/C 143/8 | Case C-259/04: Judgment of the Court (Third Chamber) of 30 March 2006 (reference for a preliminary ruling from the High Court of Justice (Queen's Bench Division)) — Elizabeth Florence Emanuel v Continental Shelf 128 Ltd, (Trade marks of such a nature as to deceive the public or liable to mislead the public as to the nature, quality or geographical origin of a product — Trade mark assigned by the proprietor together with the undertaking producing the goods to which the mark relates — Directive 89/104/EEC) | 10 |
| 2006/C 143/9 | Case C-274/04: Judgment of the Court (First Chamber) of 6 April 2006 (reference for a preliminary ruling from the Finanzgericht Hamburg) — ED & F Man Sugar Ltd v Hauptzollamt Hamburg-Jonas (Agriculture — Regulation (EEC) No 3665/87 — Export refunds — Sanction applied following a decision to recover a refund that has become final — Possibility of re-examining the decision imposing a sanction) | 10 |
| 2006/C 143/0 | Case C-341/04: Judgment of the Court (Grand Chamber) Chamber) of 2 May 2006 (reference for a preliminary ruling from the Supreme Court (Ireland)) Eurofood IFCS Ltd — Enrico Bondi v Bank of America N.A., Pearse Farrell, Official Liquidator, Director of Corporate Enforcement, Certificate/Note holders (Judicial cooperation in civil matters — Regulation (EC) No 1346/2000 — Insolvency proceedings — Decision to open the proceedings — Centre of the debtor's main interests — Recognition of insolvency proceedings — Public policy (keywords) | 11 |
| 2006/C 143/1 | Case C-410/04: Judgment of the Court (First Chamber) of 6 April 2006 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Puglia) — Associazione Nazionale Autotrasporto Viaggiatori (ANAV) v Commune di Bari, A.M.T.A.B. Servizio SpA (Freedom to provide services — Local public transport service — Award with no call for tenders — Award by a public authority to an undertaking of which it owns the share capital) | 12 |
| 2006/C 143/2 | Case C-417/04 P: Judgment of the Court (Grand Chamber) of 2 May 2006 — Regione Siciliana v Commission of the European Communities (Appeal — European Regional Development Fund (ERDF) — Closure of Community financial assistance — Action for annulment — Admissibility — Local or regional entity — Measures of direct and individual concern to that entity — Direct concern) | 12 |
| 2006/C 143/3 | Case C-423/04: Judgment of the Court (First Chamber) of 27 April 2006 (reference for a preliminary ruling from the Social Security Commissioner) — Sarah Margaret Richards v Secretary of State for Work and Pensions (Equal treatment for men and women in matters of social security — Directive 79/7/EEC — Refusal to award a retirement pension at the age of 60 to a transsexual who has undergone male-to-female gender reassignment surgery) | 13 |
| 2006/C 143/4 | Case C-428/04: Judgment of the Court (Third Chamber) of 6 April 2006 — Commission of the European Communities v Republic of Austria (Failure to fulfil obligations — Directive 89/391/EEC — Measures to encourage improvements in the safety and health of workers at work — Failure to notify implementing measures — Incorrect or inadequate implementation — Articles 2(1), 7(3), 8(2), 11(2)(c) and (d), 13(2)(b) and 18) | 13 |
| 2006/C 143/5 | Joined Cases C-443/04 and C-444/04: Judgment of the Court (Third Chamber) of 27 April 2006 (references for a preliminary ruling from the Hoge Raad der Nederlanden) — H.A. Solleveld (C-443/04) and J.E. van den Hout-van Eijnsbergen (C-444/04) v Staatssecretaris van Financiën (Sixth VAT Directive — Article 13A(1)(c) — Exemptions — Provision of medical care in the exercise of the medical and paramedical professions — Therapeutic treatments given by a physiotherapist and a psychotherapist — Definition by the Member State concerned of paramedical professions — Discretion — Limits) | 14 |
| 2006/C 143/6 | Case C-456/04: Judgment of the Court (Second Chamber) of 6 April 2006 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia) — Agip Petroli SpA v Capitaneria di porto di Siracusa, Capitaneria di porto di Siracusa — Sezione staccato di Santa Panagia, Ministero delle Infrastrutture e dei Trasporti (Maritime cabotage — Regulation (EEC) No 3577/92 — Law applicable to the manning of vessels over 650 gt carrying out island cabotage — Meaning of voyage which follows or precedes a voyage to or from another State) | 15 |
| 2006/C 143/7 | Case C-493/04: Judgment of the Court (Third Chamber) of 9 March 2006 (reference for a preliminary ruling from the Gerechtshof te 's-Hertogenbosch) — L.H. Piatkowski v Inspecteur van de Belastingdienst — grote ondernemingen Eindhoven (Freedom of movement for workers — Social security — Person simultaneously employed in one Member State and self-employed in another Member State — Person subject to the social security legislation of each of those States — Regulation (EEC) No 1408/71 — Article 14c(b) and Annex VII — Social security contributions levied on interest paid by a company established in one Member State to a person resident in another Member State) | 15 |
| 2006/C 143/8 | Case C-495/04: Judgment of the Court (Fourth Chamber) of 30 March 2006 (reference for a preliminary ruling from the Hoge Raad der Nederlanden) — A.C. Smits-Koolhoven v Staatssecretaris van Financiën (Directive 95/59 — Tax on the consumption of manufactured tobacco — Herbal cigarettes — Used exclusively for medical purposes) | 16 |
| 2006/C 143/9 | Case C-502/04: Judgment of the Court (Second Chamber) of 16 February 2006 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Ergün Torun v Stadt Augsburg) (EEC-Turkey Association — Freedom of movement for workers — Article 7, second paragraph, of Decision No 1/80 of the Association Council — Child of a Turkish worker who has reached the age of majority and completed a course of vocational training in the host Member State — Criminal conviction — Effect on right of residence) | 16 |
| 2006/C 143/0 | Case C-10/05: Judgment of the Court (First Chamber) of 30 March 2006 (reference for a preliminary ruling from the Cour administrative) — Cynthia Mattern, Hajrudin Cikotic v Ministre du Travail et de l'Emploi (Freedom of movement for persons — Workers — Family members — Right of a national of a third country married to a Community national to take up an activity as an employed person — Conditions) | 17 |
| 2006/C 143/1 | Case C-15/05: Judgment of the Court (Fifth Chamber) of 27 April 2006 (reference for a preliminary ruling from the Gerechtshof te Amsterdam ) — Kawasaki Motors Europe NV v Inspecteur van de Belastingdienst/Douane district Rotterdam (Common Customs Tariff — Tariff headings — Classification of vehicles — Tractors — Cars and vehicles principally designed for the transport of persons — Regulation (EC) No 2518/98 — Point 5 of the annexed table — Invalidity) | 17 |
| 2006/C 143/2 | Case C-27/05: Judgment of the Court (First Chamber) of 27 April 2006 (reference for a preliminary ruling from the Finanzgericht Hamburg) — Elfering Export GmbH v Hauptzollamt Hamburg-Jonas (Export refunds — Material condition — Regulation (EC) No 800/1999 — Beef and veal — Absence of proof as to the origin of the products — Applicability of penalties) | 18 |
| 2006/C 143/3 | Case C-124/05: Judgment of the Court (First Chamber) of 6 April 2006 (reference for a preliminary ruling from the Gerechtshof te 's-Gravenhage) — Federatie Nederlandse Vakbeweging v Staat der Nederlanden (Social policy — Protection of the safety and health of workers — Directive 93/104/EC — Right to paid annual leave — Financial compensation for not taking the minimum period of paid annual leave) | 19 |
| 2006/C 143/4 | Case C-145/05: Judgment of the Court (Third Chamber) of 27 April 2006 (reference for a preliminary ruling from the Cour de cassation (Belgium)) — Levi Strauss & Co. v Casucci SpA (Trade marks — Directive 89/104/EEC — Article 5(1)(b) — Relevant time for assessing likelihood of confusion between a trade mark and a similar sign — Loss of distinctive character owing to conduct of the proprietor of the trade mark after use of the sign has commenced) | 19 |
| 2006/C 143/5 | Case C-180/05: Judgment of the Court (Sixth Chamber) of 27 April 2006 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil its obligations — Directive 92/100/EEC — Rights related to copyright in the field of intellectual property — Public lending right — Failure to transpose within the period prescribed) | 20 |
| 2006/C 143/6 | Case C-482/04 P: Order of the Court of 21 November 2005 — SNF SA v Commission of the European Communities (Appeal — Directive on cosmetic products — Restrictions on the use of polyacrylamides in the composition of cosmetic products) | 20 |
| 2006/C 143/7 | Case C-200/05 P: Appeal brought on 9 May 2005 by Carlos Correia de Matos against the order of the Court of First Instance (First Chamber) of 23 February 2005 in Case T-454/04 Carlos Correia de Matos v Commission | 21 |
| 2006/C 143/8 | Case C-16/06 P: Appeal brought on 13 January 2006 by Les Éditions Albert René SARL against the judgment of the Court of First Instance (Third Chamber) delivered on 27 October 2005 in Case T-336/03: Les Éditions Albert Réné SARL v Office for Harmonisation in the Internal Market (Trade Marks and Designs) | 21 |
| 2006/C 143/9 | Case C-142/06: Reference for a preliminary ruling from the Østre Landsret lodged on 16 March 2006 — Olicom A/S v Skatteministeriet | 22 |
| 2006/C 143/0 | Case C-145/06: Reference for a preliminary ruling from the Commissione tributaria di secondo grado di Trento lodged on 17 March 2006 — Fendt Italiana Srl v Agenzia Dogane Ufficio Dogane di Trento | 22 |
| 2006/C 143/1 | Case C-146/06: Reference for a preliminary ruling from the Commissione tributaria di secondo grado di Trento lodged on 17 March 2006 — Fendt Italiana Srl v Agenzia Dogane Ufficio Dogane di Trento | 23 |
| 2006/C 143/2 | Case C-147/06: Reference for a preliminary ruling from the Consiglio di Stato, Quinta Sezione lodged on 20 March 2006 — SECAP SpA v Comune di Torino | 23 |
| 2006/C 143/3 | Case C-162/06: Reference for a preliminary ruling from the Tribunal Supremo lodged on 27 March 2006 — International Mail Spain SL v Administración del Estado — Correos | 24 |
| 2006/C 143/4 | Case C-168/06: Reference for a preliminary ruling from the Wojewódzki Sąd Administracyny w Łodzi (Regional Administrative Court, Łódź) lodged on 29 March 2006 — Ceramika Paradyż sp.z oo v Dyrektor Izby Skarbowej w Łodzi | 24 |
| 2006/C 143/5 | Case C-170/06: Reference for a preliminary ruling by the Tribunale di Napoli lodged on 30 March 2006 — Giuseppina Montoro and Michelangelo Liguori v Beth Israel Deaconess Medical Center | 25 |
| 2006/C 143/6 | Case C-173/06: Reference for a preliminary ruling from the Commissione Tributaria Regionale di Genova lodged on 3 April 2006 — Agrover S.r.l. v Agenzia Dogane Circoscrizione Doganale di Genova | 25 |
| 2006/C 143/7 | Case C-177/06: Action brought on 4 April 2006 — Commission of the European Communities v Kingdom of Spain | 25 |
| 2006/C 143/8 | Case C-178/06: Action brought on 5 April 2006 — Commission of the European Communities v Republic of Estonia | 26 |
| 2006/C 143/9 | Case C-179/06: Action brought on 5 April 2006 — Commission of the European Communities v Italian Republic | 26 |
| 2006/C 143/0 | Case C-182/06: Reference for a preliminary ruling from the Cour administrative lodged on 10 April 2006 — État du grand-duché de Luxembourg v Hans Ulrich Lakebrink and Katrin Peters-Lakebrink | 27 |
| 2006/C 143/1 | Case C-183/06: Reference for a preliminary ruling from the Finanzgericht München lodged on 13 April 2006 — RUMA GmbH v Oberfinanzdirektion Nürnberg | 27 |
| 2006/C 143/2 | Case C-203/06: Action brought on 4 May 2006 — Commission of the European Communities v Czech Republic | 28 |
| 2006/C 143/3 | Case C-204/06: Action brought on 4 May 2006 — Commission of the European Communities v Czech Republic | 28 |
| 2006/C 143/4 | Case C-294/03: Order of the President of the Court of 1 December 2005 — Commission of the European Communities v Ireland | 28 |
| 2006/C 143/5 | Case C-526/03: Order of the President of the Court of 14 November 2005 — Commission of the European Communities v Hellenic Republic | 29 |
| 2006/C 143/6 | Case C-279/04: Order of the President of the Court (Fourth Chamber) of 15 December 2005 (reference for a preliminary ruling from the Retten i Hørsholm) — Anklagemyndighedden v Steffen Ryborg | 29 |
| 2006/C 143/7 | Case C-352/04: Order of the President of the Court (First Chamber) of 14 December 2005 (reference for a preliminary ruling from the Verwaltungsgericht Köln) — mdm Versandservice GmbH v Bundesrepublik Deutschland | 29 |
| 2006/C 143/8 | Case C-87/05: Order of the President of the Court of 7 September 2005 — Commission of the European Communities v Italian Republic | 29 |
| 2006/C 143/9 | Case C-126/05: Order of the President of the Court of 5 December 2005 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland | 29 |
| | COURT OF FIRST INSTANCE |
| 2006/C 143/0 | Case T-394/03: Judgment of the Court of First Instance of 11 April 2006 — Angeletti v Commission of the European Communities (Community officials — Social security — Occupational illness — Exposure to asbestos — Refusal to recognise the occupational origin of the illness — Obligation to render a decision within a reasonable time — Non-pecuniary damage) | 30 |
| 2006/C 143/1 | Case T-74/05: Order of the Court of First Instance of 3 April 2006 — The International Institute for the Urban Environment v Commission (Research and technological development programme entitled Promotion of innovation and encouragement of SME participation — Community financing — Articles 230 EC and 238 EC — Arbitration clause — Action for annulment — Admissibility) | 30 |
| 2006/C 143/2 | Case T-420/05 R: Order of the President of the Court of First Instance of 4 April 2006 — Vischim v Commission (Application for interim measures — Application for suspension of operation — Directive 91/414/EEC — Urgency — None) | 31 |
| 2006/C 143/3 | Case T-106/06: Action brought on 6 April 2006 — Demp Holding v OHIM — BAU HOW (BAUHOW) | 31 |
| 2006/C 143/4 | Case T-111/06: Action brought on 12 April 2006 — Wesergold Getränkeindustrie v OHIM — Lidl Stiftung (VITAL& FIT) | 32 |
| 2006/C 143/5 | Case T-115/06: Action brought on 7 April 2006 — Fiskeri og Havbruksnæringens Landsforening and Others v Council | 32 |
| 2006/C 143/6 | Case T-117/06: Action brought on 13 April 2006 — DeTeMedien v OHIM (suchen.de) | 33 |
| 2006/C 143/7 | Case T-124/06: Action brought on 27 April 2006 — MIP METRO v OHIM — MetroRED Telecom (MetroRED) | 34 |
| 2006/C 143/8 | Case T-126/06: Action brought on 24 April 2006 — Italian Republic v Commission of the European Communities | 34 |
| | EUROPEAN UNION CIVIL SERVICE TRIBUNAL |
| 2006/C 143/9 | Case F-16/05: Judgment of the Civil Service Tribunal (Plenary session) of 26 April 2006 — Falcione v Commission (Officials — Appointment — Classification in the higher career grade — Articles 5 and 31(2) of the Staff Regulations — Costs — Article 7(5) of Annex I to the Statute of the Court of Justice and Article 88 of the Rules of Procedure of the Court of First Instance) | 36 |
| 2006/C 143/0 | Case F-35/06: Action brought on 30 March 2006 — Grünheid v Commission | 36 |
| 2006/C 143/1 | Case F-38/06: Action brought on 14 April 2006 — Irène Bianchi v European Training Foundation | 37 |
| 2006/C 143/2 | Case F-40/06: Action brought on 8 April 2006 — Luigi Mancuccio v Commission of the European Communities | 37 |
| 2006/C 143/3 | Case F-43/06: Action brought on 21 April 2006 — Tuomo Talvela v Commission of the European Communities | 38 |
| 2006/C 143/4 | Case F-45/06: Action brought on 25 April 2006 — Martin Avendano and Others v Commission | 39 |
| 2006/C 143/5 | Case F-46/06: Action brought on 4 May 2006 — Skareby v Commission | 39 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2006/C 143/1

Taking of the oath by a new Member of the Court of Justice

1

2006/C 143/2

Assumption of duties by a new Judge of the Court of Justice

1

2006/C 143/3

Decisions adopted by the Court of Justice at its general meeting on 16 May 2006

1

2006/C 143/4

Lists for the purposes of determining the composition of the formations of the Court

1

2006/C 143/5

Case C-441/02: Judgment of the Court (First Chamber) of 27 April 2006 — Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Articles 8a and 48 of the EC Treaty (now, after amendment, Articles 18 EC and 39 EC) — Directives 64/221/EEC, 73/148/EEC and 90/364/EEC — Regulation (EEC) No 1612/68 — Freedom of movement for nationals of Member States — Public policy — Right to respect for family life — National legislation relating to the prohibition on residence and expulsion — Administrative practice — Criminal conviction — Expulsion)

2

2006/C 143/6

Joined Cases C-87/03 and C-100/03: Judgment of the Court (Third Chamber) of 30 March 2006 — Kingdom of Spain v Council of the European Union (Fisheries — Regulation distributing catch quotas among Member States — Act of accession of Spain — End of the transitional period — Requirement of relative stability — Principle of non-discrimination — New fishing opportunities)

3

2006/C 143/7

Case C-408/03: Judgment of the Court (Grand Chamber) of 23 March 2006 — Commission of the European Communities v Kingdom of Belgium (Failure to fulfil obligations — Breach of Community legislation on the right of residence of citizens of the Union — National legislation and administrative practice relating to the requirement of sufficient personal resources and the issuing of orders to leave the territory of the Member State concerned)

3

2006/C 143/8

Case C-436/03: Judgment of the Court (Grand Chamber) of 2 May 2006 — European Parliament v Council of the European Union (Action for annulment — Regulation (EC) No 1435/2003 — European Cooperative Society (SCE) — Choice of legal basis — Article 95 EC — Article 308 EC)

4

2006/C 143/9

Case C-451/03: Judgment of the Court (Third Chamber) of 30 March 2006 (reference for a preliminary ruling from the Corte d'appello di Milano) — Servizi Ausiliari Dottori Commercialisti Srl v Giuseppe Calafiori (Freedom of establishment — Freedom to provide services — Competition rules applicable to undertakings — State aid — Tax Advice Centres — Pursuit of certain tax advice and assistance activities — Exclusive right — Remuneration for such activities)

4

2006/C 143/0

Case C-551/03 P: Judgment of the Court (Third Chamber) of 6 April 2006 — General Motors BV (formerly General Motors Nederland BV and Opel Nederland BV) v Commission of the European Communities (Appeals — Agreements, decisions and concerted practices — Article 81 EC — Regulations (EEC) No 123/85 and (EC) No 1475/95 — Distribution of Opel motor vehicles — Partitioning of the market — Restrictions on exports — Restrictive bonus policy — Fine — Guidelines for the calculation of fines)

5

2006/C 143/1

Case C-36/04: Judgment of the Court (Second Chamber) of 30 March 2006 — Kingdom of Spain v Council of the European Union (Regulation (EC) No 1954/2003 — Articles 3, 4 and 6 — Management of the fishing effort — Community fishing areas and resources — Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties — Non-severability — Inadmissibility)

5

2006/C 143/2

Case C-46/04: Judgment of the Court (First Chamber) of 30 March 2006 (reference for a preliminary ruling from the Corte Suprema di Cassazione) — Aro Tubi Trafilerie SpA v Ministero dell'Economia e delle Finanze (Directive 69/335 — Indirect taxes on the raising of capital — National legislation providing for the charging, in the case of a reverse merger, of a proportional registration tax of 1 % of the value of such a transaction — Classification as capital duty — Increase in capital — Increase in the assets of the company — Increase in the value of shares — Provision of services by a member — Decision to merge made by the members of the member)

6

2006/C 143/3

Case C-96/04: Judgment of the Court (First Chamber) of 27 April 2006 (reference for a preliminary ruling from the Amtsgericht Niebüll) — Standesamt Stadt Niebüll v Stefan Grunkin, Dorothee Regina Paul (Reference for a preliminary ruling — Determination of a child's surname — Procedure to transfer that determination to one of the parents — Lack of jurisdiction of the Court)

6

2006/C 143/4

Joined Cases C-131/04 and C-257/04: Judgment of the Court (First Chamber) of 16 March 2006 (references for a preliminary ruling from the Court of Appeal, Employment Tribunal) — C.D. Robinson-Steele v R.D. Retail Services Ltd (C-131/04) — Michael Jason Clarke v Frank Staddon Ltd (C-257/04) and J.C. Caulfield, C.F. Caulfield, K.V. Barnes v Hanson Clay Products Ltd, formerly Marshalls Clay Products Ltd (C-257/04) (Social policy — Protection of the health and safety of workers — Directive 93/104/EC — Entitlement to paid annual leave — Inclusion of payment for annual leave in the hourly or daily remuneration (rolled-up holiday pay)

7

2006/C 143/5

Case C-184/04: Judgment of the Court (First Chamber) of 30 March 2006 (reference for a preliminary ruling from the Korkein hallinto-oikeus) — Uudenkaupungin kaupunki (VAT — Deduction of input tax — Capital goods — Immovable property — Adjustment of deductions)

8

2006/C 143/6

Case C-217/04: Judgment of the Court (Grand Chamber) of 2 May 2006 — United Kingdom of Great Britain and Northern Ireland v European Parliament and Council of the European Union (Regulation (EC) No 460/2004 — European Network and Information Security Agency — Choice of legal basis)

8

2006/C 143/7

Case C-245/04: Judgment of the Court (First Chamber) of 6 April 2006 (reference for a preliminary ruling from the Verwaltungsgerichtshof) — EMAG Handel Eder OHG v Finanzlandesdirektion für Kärnten (Preliminary references — Sixth VAT Directive — Article 8(1)(a) and (b), the first subparagraph of Article 28a(1)(a), Article 28b(A)(1) and the first subparagraph of Article 28c(A)(a) — Intra-Community dispatch or transport of goods — Supplies — Intra-Community acquisition of goods — Chain transactions — Place of transaction)

9

2006/C 143/8

Case C-259/04: Judgment of the Court (Third Chamber) of 30 March 2006 (reference for a preliminary ruling from the High Court of Justice (Queen's Bench Division)) — Elizabeth Florence Emanuel v Continental Shelf 128 Ltd, (Trade marks of such a nature as to deceive the public or liable to mislead the public as to the nature, quality or geographical origin of a product — Trade mark assigned by the proprietor together with the undertaking producing the goods to which the mark relates — Directive 89/104/EEC)

10

2006/C 143/9

Case C-274/04: Judgment of the Court (First Chamber) of 6 April 2006 (reference for a preliminary ruling from the Finanzgericht Hamburg) — ED & F Man Sugar Ltd v Hauptzollamt Hamburg-Jonas (Agriculture — Regulation (EEC) No 3665/87 — Export refunds — Sanction applied following a decision to recover a refund that has become final — Possibility of re-examining the decision imposing a sanction)

10

2006/C 143/0

Case C-341/04: Judgment of the Court (Grand Chamber) Chamber) of 2 May 2006 (reference for a preliminary ruling from the Supreme Court (Ireland)) Eurofood IFCS Ltd — Enrico Bondi v Bank of America N.A., Pearse Farrell, Official Liquidator, Director of Corporate Enforcement, Certificate/Note holders (Judicial cooperation in civil matters — Regulation (EC) No 1346/2000 — Insolvency proceedings — Decision to open the proceedings — Centre of the debtor's main interests — Recognition of insolvency proceedings — Public policy (keywords)

11

2006/C 143/1

Case C-410/04: Judgment of the Court (First Chamber) of 6 April 2006 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Puglia) — Associazione Nazionale Autotrasporto Viaggiatori (ANAV) v Commune di Bari, A.M.T.A.B. Servizio SpA (Freedom to provide services — Local public transport service — Award with no call for tenders — Award by a public authority to an undertaking of which it owns the share capital)

12

2006/C 143/2

Case C-417/04 P: Judgment of the Court (Grand Chamber) of 2 May 2006 — Regione Siciliana v Commission of the European Communities (Appeal — European Regional Development Fund (ERDF) — Closure of Community financial assistance — Action for annulment — Admissibility — Local or regional entity — Measures of direct and individual concern to that entity — Direct concern)

12

2006/C 143/3

Case C-423/04: Judgment of the Court (First Chamber) of 27 April 2006 (reference for a preliminary ruling from the Social Security Commissioner) — Sarah Margaret Richards v Secretary of State for Work and Pensions (Equal treatment for men and women in matters of social security — Directive 79/7/EEC — Refusal to award a retirement pension at the age of 60 to a transsexual who has undergone male-to-female gender reassignment surgery)

13

2006/C 143/4

Case C-428/04: Judgment of the Court (Third Chamber) of 6 April 2006 — Commission of the European Communities v Republic of Austria (Failure to fulfil obligations — Directive 89/391/EEC — Measures to encourage improvements in the safety and health of workers at work — Failure to notify implementing measures — Incorrect or inadequate implementation — Articles 2(1), 7(3), 8(2), 11(2)(c) and (d), 13(2)(b) and 18)

13

2006/C 143/5

Joined Cases C-443/04 and C-444/04: Judgment of the Court (Third Chamber) of 27 April 2006 (references for a preliminary ruling from the Hoge Raad der Nederlanden) — H.A. Solleveld (C-443/04) and J.E. van den Hout-van Eijnsbergen (C-444/04) v Staatssecretaris van Financiën (Sixth VAT Directive — Article 13A(1)(c) — Exemptions — Provision of medical care in the exercise of the medical and paramedical professions — Therapeutic treatments given by a physiotherapist and a psychotherapist — Definition by the Member State concerned of paramedical professions — Discretion — Limits)

14

2006/C 143/6

Case C-456/04: Judgment of the Court (Second Chamber) of 6 April 2006 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia) — Agip Petroli SpA v Capitaneria di porto di Siracusa, Capitaneria di porto di Siracusa — Sezione staccato di Santa Panagia, Ministero delle Infrastrutture e dei Trasporti (Maritime cabotage — Regulation (EEC) No 3577/92 — Law applicable to the manning of vessels over 650 gt carrying out island cabotage — Meaning of voyage which follows or precedes a voyage to or from another State)

15

2006/C 143/7

Case C-493/04: Judgment of the Court (Third Chamber) of 9 March 2006 (reference for a preliminary ruling from the Gerechtshof te 's-Hertogenbosch) — L.H. Piatkowski v Inspecteur van de Belastingdienst — grote ondernemingen Eindhoven (Freedom of movement for workers — Social security — Person simultaneously employed in one Member State and self-employed in another Member State — Person subject to the social security legislation of each of those States — Regulation (EEC) No 1408/71 — Article 14c(b) and Annex VII — Social security contributions levied on interest paid by a company established in one Member State to a person resident in another Member State)

15

2006/C 143/8

Case C-495/04: Judgment of the Court (Fourth Chamber) of 30 March 2006 (reference for a preliminary ruling from the Hoge Raad der Nederlanden) — A.C. Smits-Koolhoven v Staatssecretaris van Financiën (Directive 95/59 — Tax on the consumption of manufactured tobacco — Herbal cigarettes — Used exclusively for medical purposes)

16

2006/C 143/9

Case C-502/04: Judgment of the Court (Second Chamber) of 16 February 2006 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Ergün Torun v Stadt Augsburg) (EEC-Turkey Association — Freedom of movement for workers — Article 7, second paragraph, of Decision No 1/80 of the Association Council — Child of a Turkish worker who has reached the age of majority and completed a course of vocational training in the host Member State — Criminal conviction — Effect on right of residence)

16

2006/C 143/0

Case C-10/05: Judgment of the Court (First Chamber) of 30 March 2006 (reference for a preliminary ruling from the Cour administrative) — Cynthia Mattern, Hajrudin Cikotic v Ministre du Travail et de l'Emploi (Freedom of movement for persons — Workers — Family members — Right of a national of a third country married to a Community national to take up an activity as an employed person — Conditions)

17

2006/C 143/1

Case C-15/05: Judgment of the Court (Fifth Chamber) of 27 April 2006 (reference for a preliminary ruling from the Gerechtshof te Amsterdam ) — Kawasaki Motors Europe NV v Inspecteur van de Belastingdienst/Douane district Rotterdam (Common Customs Tariff — Tariff headings — Classification of vehicles — Tractors — Cars and vehicles principally designed for the transport of persons — Regulation (EC) No 2518/98 — Point 5 of the annexed table — Invalidity)

17

2006/C 143/2

Case C-27/05: Judgment of the Court (First Chamber) of 27 April 2006 (reference for a preliminary ruling from the Finanzgericht Hamburg) — Elfering Export GmbH v Hauptzollamt Hamburg-Jonas (Export refunds — Material condition — Regulation (EC) No 800/1999 — Beef and veal — Absence of proof as to the origin of the products — Applicability of penalties)

18

2006/C 143/3

Case C-124/05: Judgment of the Court (First Chamber) of 6 April 2006 (reference for a preliminary ruling from the Gerechtshof te 's-Gravenhage) — Federatie Nederlandse Vakbeweging v Staat der Nederlanden (Social policy — Protection of the safety and health of workers — Directive 93/104/EC — Right to paid annual leave — Financial compensation for not taking the minimum period of paid annual leave)

19

2006/C 143/4

Case C-145/05: Judgment of the Court (Third Chamber) of 27 April 2006 (reference for a preliminary ruling from the Cour de cassation (Belgium)) — Levi Strauss & Co. v Casucci SpA (Trade marks — Directive 89/104/EEC — Article 5(1)(b) — Relevant time for assessing likelihood of confusion between a trade mark and a similar sign — Loss of distinctive character owing to conduct of the proprietor of the trade mark after use of the sign has commenced)

19

2006/C 143/5

Case C-180/05: Judgment of the Court (Sixth Chamber) of 27 April 2006 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil its obligations — Directive 92/100/EEC — Rights related to copyright in the field of intellectual property — Public lending right — Failure to transpose within the period prescribed)

20

2006/C 143/6

Case C-482/04 P: Order of the Court of 21 November 2005 — SNF SA v Commission of the European Communities (Appeal — Directive on cosmetic products — Restrictions on the use of polyacrylamides in the composition of cosmetic products)

20

2006/C 143/7

Case C-200/05 P: Appeal brought on 9 May 2005 by Carlos Correia de Matos against the order of the Court of First Instance (First Chamber) of 23 February 2005 in Case T-454/04 Carlos Correia de Matos v Commission

Carlos Correia de Matos

Commission

21

2006/C 143/8

Case C-16/06 P: Appeal brought on 13 January 2006 by Les Éditions Albert René SARL against the judgment of the Court of First Instance (Third Chamber) delivered on 27 October 2005 in Case T-336/03: Les Éditions Albert Réné SARL v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

21

2006/C 143/9

Case C-142/06: Reference for a preliminary ruling from the Østre Landsret lodged on 16 March 2006 — Olicom A/S v Skatteministeriet

22

2006/C 143/0

Case C-145/06: Reference for a preliminary ruling from the Commissione tributaria di secondo grado di Trento lodged on 17 March 2006 — Fendt Italiana Srl v Agenzia Dogane Ufficio Dogane di Trento

22

2006/C 143/1

Case C-146/06: Reference for a preliminary ruling from the Commissione tributaria di secondo grado di Trento lodged on 17 March 2006 — Fendt Italiana Srl v Agenzia Dogane Ufficio Dogane di Trento

23

2006/C 143/2

Case C-147/06: Reference for a preliminary ruling from the Consiglio di Stato, Quinta Sezione lodged on 20 March 2006 — SECAP SpA v Comune di Torino

23

2006/C 143/3

Case C-162/06: Reference for a preliminary ruling from the Tribunal Supremo lodged on 27 March 2006 — International Mail Spain SL v Administración del Estado — Correos

24

2006/C 143/4

Case C-168/06: Reference for a preliminary ruling from the Wojewódzki Sąd Administracyny w Łodzi (Regional Administrative Court, Łódź) lodged on 29 March 2006 — Ceramika Paradyż sp.z oo v Dyrektor Izby Skarbowej w Łodzi

24

2006/C 143/5

Case C-170/06: Reference for a preliminary ruling by the Tribunale di Napoli lodged on 30 March 2006 — Giuseppina Montoro and Michelangelo Liguori v Beth Israel Deaconess Medical Center

25

2006/C 143/6

Case C-173/06: Reference for a preliminary ruling from the Commissione Tributaria Regionale di Genova lodged on 3 April 2006 — Agrover S.r.l. v Agenzia Dogane Circoscrizione Doganale di Genova

25

2006/C 143/7

Case C-177/06: Action brought on 4 April 2006 — Commission of the European Communities v Kingdom of Spain

25

2006/C 143/8

Case C-178/06: Action brought on 5 April 2006 — Commission of the European Communities v Republic of Estonia

26

2006/C 143/9

Case C-179/06: Action brought on 5 April 2006 — Commission of the European Communities v Italian Republic

26

2006/C 143/0

Case C-182/06: Reference for a preliminary ruling from the Cour administrative lodged on 10 April 2006 — État du grand-duché de Luxembourg v Hans Ulrich Lakebrink and Katrin Peters-Lakebrink

27

2006/C 143/1

Case C-183/06: Reference for a preliminary ruling from the Finanzgericht München lodged on 13 April 2006 — RUMA GmbH v Oberfinanzdirektion Nürnberg

27

2006/C 143/2

Case C-203/06: Action brought on 4 May 2006 — Commission of the European Communities v Czech Republic

28

2006/C 143/3

Case C-204/06: Action brought on 4 May 2006 — Commission of the European Communities v Czech Republic

28

2006/C 143/4

Case C-294/03: Order of the President of the Court of 1 December 2005 — Commission of the European Communities v Ireland

28

2006/C 143/5

Case C-526/03: Order of the President of the Court of 14 November 2005 — Commission of the European Communities v Hellenic Republic

29

2006/C 143/6

Case C-279/04: Order of the President of the Court (Fourth Chamber) of 15 December 2005 (reference for a preliminary ruling from the Retten i Hørsholm) — Anklagemyndighedden v Steffen Ryborg

29

2006/C 143/7

Case C-352/04: Order of the President of the Court (First Chamber) of 14 December 2005 (reference for a preliminary ruling from the Verwaltungsgericht Köln) — mdm Versandservice GmbH v Bundesrepublik Deutschland

29

2006/C 143/8

Case C-87/05: Order of the President of the Court of 7 September 2005 — Commission of the European Communities v Italian Republic

29

2006/C 143/9

Case C-126/05: Order of the President of the Court of 5 December 2005 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

29

COURT OF FIRST INSTANCE

2006/C 143/0

Case T-394/03: Judgment of the Court of First Instance of 11 April 2006 — Angeletti v Commission of the European Communities (Community officials — Social security — Occupational illness — Exposure to asbestos — Refusal to recognise the occupational origin of the illness — Obligation to render a decision within a reasonable time — Non-pecuniary damage)

30

2006/C 143/1

Case T-74/05: Order of the Court of First Instance of 3 April 2006 — The International Institute for the Urban Environment v Commission (Research and technological development programme entitled Promotion of innovation and encouragement of SME participation — Community financing — Articles 230 EC and 238 EC — Arbitration clause — Action for annulment — Admissibility)

30

2006/C 143/2

Case T-420/05 R: Order of the President of the Court of First Instance of 4 April 2006 — Vischim v Commission (Application for interim measures — Application for suspension of operation — Directive 91/414/EEC — Urgency — None)

31

2006/C 143/3

Case T-106/06: Action brought on 6 April 2006 — Demp Holding v OHIM — BAU HOW (BAUHOW)

31

2006/C 143/4

Case T-111/06: Action brought on 12 April 2006 — Wesergold Getränkeindustrie v OHIM — Lidl Stiftung (VITAL& FIT)

32

2006/C 143/5

Case T-115/06: Action brought on 7 April 2006 — Fiskeri og Havbruksnæringens Landsforening and Others v Council

32

2006/C 143/6

Case T-117/06: Action brought on 13 April 2006 — DeTeMedien v OHIM (suchen.de)

33

2006/C 143/7

Case T-124/06: Action brought on 27 April 2006 — MIP METRO v OHIM — MetroRED Telecom (MetroRED)

34

2006/C 143/8

Case T-126/06: Action brought on 24 April 2006 — Italian Republic v Commission of the European Communities

34

EUROPEAN UNION CIVIL SERVICE TRIBUNAL

2006/C 143/9

Case F-16/05: Judgment of the Civil Service Tribunal (Plenary session) of 26 April 2006 — Falcione v Commission (Officials — Appointment — Classification in the higher career grade — Articles 5 and 31(2) of the Staff Regulations — Costs — Article 7(5) of Annex I to the Statute of the Court of Justice and Article 88 of the Rules of Procedure of the Court of First Instance)

36

2006/C 143/0

Case F-35/06: Action brought on 30 March 2006 — Grünheid v Commission

36

2006/C 143/1

Case F-38/06: Action brought on 14 April 2006 — Irène Bianchi v European Training Foundation

37

2006/C 143/2

Case F-40/06: Action brought on 8 April 2006 — Luigi Mancuccio v Commission of the European Communities

37

2006/C 143/3

Case F-43/06: Action brought on 21 April 2006 — Tuomo Talvela v Commission of the European Communities

38

2006/C 143/4

Case F-45/06: Action brought on 25 April 2006 — Martin Avendano and Others v Commission

39

2006/C 143/5

Case F-46/06: Action brought on 4 May 2006 — Skareby v Commission

39

| | III   Notices |
| --- | --- |
| 2006/C 143/6 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 131, 3.6.2006 | 41 |

III   Notices

2006/C 143/6

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 131, 3.6.2006

Official Journal of the European Union

41

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

EN

---

I Information

Court of Justice

COURT OF JUSTICE

| 17.6.2006 | EN | Official Journal of the European Union | C 143/1 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/1

---

Taking of the oath by a new Member of the Court of Justice

(2006/C 143/01)

Following his appointment as Advocate General at the Court of Justice of the European Communities by decision of the Representatives of the Governments of the Member States of the European Communities of 6 April 2006 (1), Mr Paolo Mengozzi took the oath before the Court on 3 May 2006.

---

(1)  OJ L 104 of 13 April 2006, p. 36

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/1 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/1

---

Assumption of duties by a new Judge of the Court of Justice

(2006/C 143/02)

Following his appointment as Judge of the Court of Justice of the European Communities by decision of the Representatives of the Governments of the Member States of the European Communities of 6 April 2006, (1) Mr Antonio Tizzano took up his duties on 4 May 2006.

---

(1)  OJ L 104 of 13 April 2006, p. 37.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/1 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/1

---

Decisions adopted by the Court of Justice at its general meeting on 16 May 2006

(2006/C 143/03)

At its meeting on 16 May 2006, the Court of Justice of the European Communities decided to assign Mr Tizzano to the Third and Sixth Chambers.

The composition of the Third and Sixth Chambers is accordingly as set out below.

Third Chamber

A. Rosas, President of the Chamber

J. Malenovský, J.-P. Puissochet, S. von Bahr, A. Tizzano, A. Borg Barthet, U. Lõhmus and A. Ó Caoimh.

Sixth Chamber

J. Malenovský, President of the Chamber

J.-P. Puissochet, S. von Bahr, A. Tizzano, A. Borg Barthet, U. Lõhmus and A. Ó Caoimh.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/1 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/1

---

Lists for the purposes of determining the composition of the formations of the Court

(2006/C 143/04)

At its meeting on 16 May 2006, the Court drew up the list, referred to in Article 11b(2) of the Rules of Procedure, for the purposes of determining the composition of the Grand Chamber as follows:

| | J.-P. Puissochet |
| --- | --- |

J.-P. Puissochet

| | L. Bay Larsen |
| --- | --- |

L. Bay Larsen

| | R. Schintgen |
| --- | --- |

R. Schintgen

| | A. Ó Caoimh |
| --- | --- |

A. Ó Caoimh

| | N. Colneric |
| --- | --- |

N. Colneric

| | E. Levits |
| --- | --- |

E. Levits

| | S. von Bahr |
| --- | --- |

S. von Bahr

| | U. Lõhmus |
| --- | --- |

U. Lõhmus

| | A. Tizzano |
| --- | --- |

A. Tizzano

| | J. Klučka |
| --- | --- |

J. Klučka

| | J.-N. Cunha Rodrigues |
| --- | --- |

J.-N. Cunha Rodrigues

| | J. Malenovský |
| --- | --- |

J. Malenovský

| | R. Silva de Lapuerta |
| --- | --- |

R. Silva de Lapuerta

| | M. Ilešič |
| --- | --- |

M. Ilešič

| | K. Lenaerts |
| --- | --- |

K. Lenaerts

| | A. Borg Barthet |
| --- | --- |

A. Borg Barthet

| | K. Schiemann |
| --- | --- |

K. Schiemann

| | G. Arestis |
| --- | --- |

G. Arestis

| | J. Makarczyk |
| --- | --- |

J. Makarczyk

| | E. Juhász |
| --- | --- |

E. Juhász

| | P. Kūris |
| --- | --- |

P. Kūris

At its meeting on 16 May 2006, the Court drew up the lists, referred to in the first subparagraph of Article 11c(2) of the Rules of Procedure, for the purposes of determining the composition of the Chambers of five Judges as follows:

| | J.- P. Puissochet |
| --- | --- |

J.- P. Puissochet

| | A. Ó Caoimh |
| --- | --- |

A. Ó Caoimh

| | S. von Bahr |
| --- | --- |

S. von Bahr

| | U. Lõhmus |
| --- | --- |

U. Lõhmus

| | A. Tizzano |
| --- | --- |

A. Tizzano

| | J. Malenovský |
| --- | --- |

J. Malenovský

| | A. Borg Barthet |
| --- | --- |

A. Borg Barthet

At its meeting on 14 October 2003, the Court drew up the lists, referred to in the second subparagraph of Article 11c(2) of the Rules of Procedure, for the purposes of determining the composition of the Sixth Chamber as follows:

| | J.-P. Puissochet |
| --- | --- |

J.-P. Puissochet

| | S. von Bahr |
| --- | --- |

S. von Bahr

| | A. Tizzano |
| --- | --- |

A. Tizzano

| | A. Borg Barthet |
| --- | --- |

A. Borg Barthet

| | U. Lõhmus |
| --- | --- |

U. Lõhmus

| | A. Ó Caoimh |
| --- | --- |

A. Ó Caoimh

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/2 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/2

---

Judgment of the Court (First Chamber) of 27 April 2006 — Commission of the European Communities v Federal Republic of Germany

(Case C-441/02) (1)

(Failure of a Member State to fulfil obligations - Articles 8a and 48 of the EC Treaty (now, after amendment, Articles 18 EC and 39 EC) - Directives 64/221/EEC, 73/148/EEC and 90/364/EEC - Regulation (EEC) No 1612/68 - Freedom of movement for nationals of Member States - Public policy - Right to respect for family life - National legislation relating to the prohibition on residence and expulsion - Administrative practice - Criminal conviction - Expulsion)

(2006/C 143/05)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: C. O'Reilly and W. Bogensberger, Agents)

Defendant: Federal Republic of Germany (represented by: W.-D. Plessing and A. Tiemann, Agents)

Party intervening in support of the applicant: Italian Republic (represented by: I.M. Braguglia, Agent, and M. Fiorilli, avvocato dello Stato)

Re:

Failure of a Member State to fulfil obligations — Articles 8a and 48 of the EC Treaty (now, after amendment, Articles 18 EC and 39 EC) — Articles 3 and 9 of Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English Special Edition 1963-1964, p. 117) — Article 1 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475) — Articles 1, 4, 5, 8 and 10 of Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services (OJ 1973 L 172, p. 14) — Articles 1 and 2 of Council Directive 90/364/EEC of 28 June 1990 on the right of residence (OJ 1990 L 180, p. 26) — National legislation relating to residence prohibitions and expulsion on grounds of public policy, in particular for criminal convictions — Administrative practice

Operative part of the judgment

The Court:

| 1) | Declares that, by failing to transpose in sufficiently clear terms in Paragraph 12(1) of the Law on entry and residence of nationals of Member States of the European Economic Community (Gesetz über Einreise und Aufenthalt von Staatsangehörigen der Mitgliedstaaten der Europäischen Wirtschaftsgemeinschaft) of 21 January 1980 the requirements under Community law with regard to restriction of freedom of movement, the Federal Republic of Germany has failed to fulfil its obligations under Article 39 EC, Article 3 of Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health and Article 10 of Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services; |
| --- | --- |

1)

Declares that, by failing to transpose in sufficiently clear terms in Paragraph 12(1) of the Law on entry and residence of nationals of Member States of the European Economic Community (Gesetz über Einreise und Aufenthalt von Staatsangehörigen der Mitgliedstaaten der Europäischen Wirtschaftsgemeinschaft) of 21 January 1980 the requirements under Community law with regard to restriction of freedom of movement, the Federal Republic of Germany has failed to fulfil its obligations under Article 39 EC, Article 3 of Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health and Article 10 of Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services;

| 2) | For the rest, dismisses the application; |
| --- | --- |

2)

For the rest, dismisses the application;

| 3) | Orders the Commission of the European Communities to pay the costs; |
| --- | --- |

3)

Orders the Commission of the European Communities to pay the costs;

| 4) | Orders the Italian Republic to bear its own costs. |
| --- | --- |

4)

Orders the Italian Republic to bear its own costs.

---

(1)  OJ C 31 of 8.2.2003.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/3 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/3

---

Judgment of the Court (Third Chamber) of 30 March 2006 — Kingdom of Spain v Council of the European Union

(Joined Cases C-87/03 and C-100/03) (1)

(Fisheries - Regulation distributing catch quotas among Member States - Act of accession of Spain - End of the transitional period - Requirement of relative stability - Principle of non-discrimination - New fishing opportunities)

(2006/C 143/06)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: N. Díaz Abad, Agent)

Defendant: Council of the European Union (represented by: G. Ramos Ruano and F. Florindo Gijón,Agents,)

Interveners: Commission of the European Communities (represented by: T. van Rijn, F. Jimeno Fernandez and S. Pardo Quintillán, Agents), United Kingdom of Great Britain and Northern Ireland (represented by: D. Wyatt QC and K. Manji, Agent

Re:

Partial annulment of Council Regulation (EC) No 2341/2002 of 20 December 2002 fixing for 2003 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required (OJ 2002 L 356, p. 12), in so far as the new fishing opportunities, fixed from 1992 to 1998 for the North Sea and for the Baltic, are not allocated taking account of the interests of Spain, despite the fact that the transitional period has come to an end — Discrimination — Application of Art. 20(2) of Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the common fisheries policy (OJ 2002 L 358, p. 59).

Operative part of the judgment

The Court:

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

1.

Dismisses the actions;

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

2.

Orders the Kingdom of Spain to pay the costs;

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

3.

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

---

(1)  OJ C 135, 07.06.2003.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/3 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/3

---

Judgment of the Court (Grand Chamber) of 23 March 2006 — Commission of the European Communities v Kingdom of Belgium

(Case C-408/03) (1)

(Failure to fulfil obligations - Breach of Community legislation on the right of residence of citizens of the Union - National legislation and administrative practice relating to the requirement of sufficient personal resources and the issuing of orders to leave the territory of the Member State concerned)

(2006/C 143/07)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: M. Condou-Durande and D. Martin, Agents)

Defendant: Kingdom of Belgium (represented by: E. Dominkovits, Agent,)

Intervener in support of the defendant: United Kingdom of Great Britain and Northern Ireland (represented by: C. Jackson, Agent, and by E. Sharpston QC)

Re:

Failure of a Member State to fulfil obligations — Infringement of Community legislation on the right of residence of citizens of the Union — National legislation and administrative practice concerning the condition of possession of sufficient personal resources and the issue of orders to leave the territory

Operative part of the judgment

| 1. | Declares that






  (a) | by excluding the income of a partner residing in the host Member State in the absence of an agreement concluded before a notary and containing an assistance clause, the Kingdom of Belgium has failed to fulfil its obligations under Article 18 EC and Council Directive 90/364/EEC of 28 June 1990 on the right of residence when applying that directive to nationals of a Member State who wish to rely on their rights under that directive and on Article 18 EC, |
| --- | --- | --- |

1.

Declares that

(a)

by excluding the income of a partner residing in the host Member State in the absence of an agreement concluded before a notary and containing an assistance clause, the Kingdom of Belgium has failed to fulfil its obligations under Article 18 EC and Council Directive 90/364/EEC of 28 June 1990 on the right of residence when applying that directive to nationals of a Member State who wish to rely on their rights under that directive and on Article 18 EC,

| (b) | by making provision for automatic service of an order to leave Belgian territory on citizens of the Union who do not produce within the prescribed period the documents required to obtain a residence permit, the Kingdom of Belgium has failed to fulfil its obligations under Article 2 of Directive 90/364, Article 4 of Council Directive 68/360/EEC, Article 4 of Council Directive 73/148/EEC, Article 2 of Council Directive 93/96/EEC and Article 2 of Council Directive 90/365/EEC; |
| --- | --- |

(b)

by making provision for automatic service of an order to leave Belgian territory on citizens of the Union who do not produce within the prescribed period the documents required to obtain a residence permit, the Kingdom of Belgium has failed to fulfil its obligations under Article 2 of Directive 90/364, Article 4 of Council Directive 68/360/EEC, Article 4 of Council Directive 73/148/EEC, Article 2 of Council Directive 93/96/EEC and Article 2 of Council Directive 90/365/EEC;

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

2.

Orders the Kingdom of Belgium to pay the costs;

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

3.

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

---

(1)  OJ C 275, 15.11.2003.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/4 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/4

---

Judgment of the Court (Grand Chamber) of 2 May 2006 — European Parliament v Council of the European Union

(Case C-436/03) (1)

(Action for annulment - Regulation (EC) No 1435/2003 - European Cooperative Society (SCE) - Choice of legal basis - Article 95 EC - Article 308 EC)

(2006/C 143/08)

Language of the case: French

Parties

Applicant: European Parliament (represented by: R. Passos, E. Waldherr and J. Rufas Quintana, Agents)

Defendant: Council of the European Union (represented by: J.-P. Jacqué and M.C. Giorgi Fort, Agents)

Intervener: Commission of the European Communities (represented by: C. Schmidt and J.-F. Pasquier, Agents); Kingdom of Spain (represented by: E. Braquehais Conesa, Agent); United Kingdom of Great Britain and Northern Ireland (represented by: R. Caudwell, Agent, assisted by Lord Goldsmith and N. Paines)

Re:

Annulment of Council Regulation (EC) No 1435/2003 of 22 July 2003 on the Statute for a European Cooperative Society (SCE) (OJ 2003 L 207, p. 1)

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the European Parliament to pay the costs; |
| --- | --- |

2.

Orders the European Parliament to pay the costs;

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

3.

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

---

(1)  OJ C 289, 29.11.2003.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/4 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/4

---

Judgment of the Court (Third Chamber) of 30 March 2006 (reference for a preliminary ruling from the Corte d'appello di Milano) — Servizi Ausiliari Dottori Commercialisti Srl v Giuseppe Calafiori

(Case C-451/03) (1)

(Freedom of establishment - Freedom to provide services - Competition rules applicable to undertakings - State aid - Tax Advice Centres - Pursuit of certain tax advice and assistance activities - Exclusive right - Remuneration for such activities)

(2006/C 143/09)

Language of the case: Italian

Referring court

Corte d'appello di Milano

Parties to the main proceedings

Applicant: Servizi Ausiliari Dottori Commercialisti Srl

Defendant: Giuseppe Calafiori

Re:

Reference for a preliminary ruling — Corte d'appello di Milano — Interpretation of Articles 4, 10, 43, 48, 49, 82, 86, 87 and 98 EC — Compatibility of national rules relating to the declaration of income which confer on tax advice centres the exclusive right to provide certain consultation and assistance services to undertakings and their employees

Operative part of the judgment

| 1. | Articles 43 EC and 49 EC must be interpreted as precluding national legislation such as that at issue in the main proceedings which reserves exclusively to Tax Advice Centres the right to pursue certain tax advice and assistance activities. |
| --- | --- |

1.

Articles 43 EC and 49 EC must be interpreted as precluding national legislation such as that at issue in the main proceedings which reserves exclusively to Tax Advice Centres the right to pursue certain tax advice and assistance activities.

| 2. | A measure by which a Member State provides for the payment of compensation from State funds to certain undertakings responsible for helping taxpayers in connection with the completion of tax declarations and filing them with the tax authorities must be classified as State aid within the meaning of Article 87(1) EC, where:






  — | the level of the compensation exceeds what is necessary to cover all or part of the costs incurred in the discharge of public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations, and |
| --- | --- | --- |

2.

A measure by which a Member State provides for the payment of compensation from State funds to certain undertakings responsible for helping taxpayers in connection with the completion of tax declarations and filing them with the tax authorities must be classified as State aid within the meaning of Article 87(1) EC, where:

—

the level of the compensation exceeds what is necessary to cover all or part of the costs incurred in the discharge of public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations, and

| — | the compensation is not determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided with the means required so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligations. |
| --- | --- |

—

the compensation is not determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided with the means required so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligations.

---

(1)  OJ C 7, 10.01.2004.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/5 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/5

---

Judgment of the Court (Third Chamber) of 6 April 2006 — General Motors BV (formerly General Motors Nederland BV and Opel Nederland BV) v Commission of the European Communities

(Case C-551/03 P) (1)

(Appeals - Agreements, decisions and concerted practices - Article 81 EC - Regulations (EEC) No 123/85 and (EC) No 1475/95 - Distribution of Opel motor vehicles - Partitioning of the market - Restrictions on exports - Restrictive bonus policy - Fine - Guidelines for the calculation of fines)

(2006/C 143/10)

Language of the case: English

Parties

Appellant: General Motors BV (hereinafter General Motors Nederland BV and Opel Nederland BV)

Other party to the proceedings: Commission of the European Communities (represented by: W. Mölls and A. Whelan, Agents, assisted by J. Flynn)

Re:

Appeal against the judgment of the Court of First Instance (Second Chamber) of 21 October 2003 in Case T-368/00 General Motors Nederland and Opel Nederland v Commission — Partial annulment of Commission Decision C(2000)2707 of 20 September 2000, concerning a proceeding under Article 81 EC (COMP/36.653 — Opel) and reduction of the fine imposed on the applicant.

Operative part of the judgment

| 1. | Dismisses the appeal; |
| --- | --- |

1.

Dismisses the appeal;

| 2. | Orders General Motors BV to pay the costs. |
| --- | --- |

2.

Orders General Motors BV to pay the costs.

---

(1)  OJ C 71, 20.3.2004.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/5 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/5

---

Judgment of the Court (Second Chamber) of 30 March 2006 — Kingdom of Spain v Council of the European Union

(Case C-36/04) (1)

(Regulation (EC) No 1954/2003 - Articles 3, 4 and 6 - Management of the fishing effort - Community fishing areas and resources - Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties - Non-severability - Inadmissibility)

(2006/C 143/11)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: N. Díaz Abad, Agent)

Defendant: Council of the European Union (represented by: J. Monteiro and F. Florindo Gijón, Agents,)

Intervener in support of the defendant: Commission of the European Communities (represented by: T. van Rijn and S. Pardo Quintillán, Agents)

Re:

Annulment of Articles 3, 4 and 6 of Council Regulation (EC) No 1954/2003 of 4 November 2003 on the management of the fishing effort relating to certain Community fishing areas and resources and modifying Regulation (EEC) No 2847/93 and repealing Regulations (EC) No 685/95 and (EC) No 2027/95

Operative part of the judgment

| 1. | The action is dismissed. |
| --- | --- |

1.

The action is dismissed.

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

2.

The Kingdom of Spain is ordered to pay the costs.

| 3. | The Commission of the European Communities is ordered to bear its own costs. |
| --- | --- |

3.

The Commission of the European Communities is ordered to bear its own costs.

---

(1)  OJ C 71, 20.3.2004.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/6 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/6

---

Judgment of the Court (First Chamber) of 30 March 2006 (reference for a preliminary ruling from the Corte Suprema di Cassazione) — Aro Tubi Trafilerie SpA v Ministero dell'Economia e delle Finanze

(Case C-46/04) (1)

(Directive 69/335 - Indirect taxes on the raising of capital - National legislation providing for the charging, in the case of a ‘reverse’ merger, of a proportional registration tax of 1 % of the value of such a transaction - Classification as capital duty - Increase in capital - Increase in the assets of the company - Increase in the value of shares - Provision of services by a member - Decision to merge made by the members of the member)

(2006/C 143/12)

Language of the case: Italian

Referring court

Corte Suprema di Cassazione

Parties to the main proceedings

Applicant: Aro Tubi Trafilerie SpA

Defendant: Ministero dell'Economia e delle Finanze

Re:

Reference for a preliminary ruling — Corte Suprema di Cassazione — Interpretation of Article 4 of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ 1969 L 249, p. 25), as amended by Council Directive 85/303/EEC of 10 June 1985 (OJ 1985 L 156, p. 23) — Indirect taxes on contributions of capital to capital companies — Merger of two companies where one holds all the shares in the other

Operative part of the judgment

In circumstances such as those at issue in the main proceedings, Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directives 73/80/EEC of 9 April 1973 fixing common rates of capital duty and 85/303/EEC of 10 June 1985, precludes the charging of a proportional registration duty of 1 % of the value of the transaction in the case of a 'reverse' merger, namely a merger by means of acquisition where all of the shares in the acquiring company are held by the company acquired.

---

(1)  OJ C 94, 17.4.2004.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/6 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/6

---

Judgment of the Court (First Chamber) of 27 April 2006 (reference for a preliminary ruling from the Amtsgericht Niebüll) — Standesamt Stadt Niebüll v Stefan Grunkin, Dorothee Regina Paul

(Case C-96/04) (1)

(Reference for a preliminary ruling - Determination of a child's surname - Procedure to transfer that determination to one of the parents - Lack of jurisdiction of the Court)

(2006/C 143/13)

Language of the case: German

Referring court

Amtsgericht Niebüll

Parties to the main proceedings

Applicant: Standesamt Stadt Niebüll

Defendant: Stefan Grunkin, Dorothee Regina Paul

Re:

Reference for a preliminary ruling — Amtsgericht Niebüll — Interpretation of Articles 12 EC and 18 EC — Interpretation of the principles of Community law relating to European citizenship and freedom of movement of persons — Minor child born and residing in one Member State and having the nationality of another Member State — Application in the latter Member State for the mother's name to be joined to that of the father — Refusal

Operative part of the judgment

The Court of Justice of the European Communities has no jurisdiction to answer the question referred by the Amtsgericht Niebüll in its decision of 2 June 2003.

---

(1)  OJ C 106, 30.4.2004.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/7 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/7

---

Judgment of the Court (First Chamber) of 16 March 2006 (references for a preliminary ruling from the Court of Appeal, Employment Tribunal) — C.D. Robinson-Steele v R.D. Retail Services Ltd (C-131/04) — Michael Jason Clarke v Frank Staddon Ltd (C-257/04) and J.C. Caulfield, C.F. Caulfield, K.V. Barnes v Hanson Clay Products Ltd, formerly Marshalls Clay Products Ltd (C-257/04)

(Joined Cases C-131/04 and C-257/04) (1)

(Social policy - Protection of the health and safety of workers - Directive 93/104/EC - Entitlement to paid annual leave - Inclusion of payment for annual leave in the hourly or daily remuneration (‘rolled-up holiday pay’)

(2006/C 143/14)

Language of the case: English

Referring courts

Court of Appeal, Employment Tribunal

Parties to the main proceedings

Applicants: C.D. Robinson-Steele (C-131/04), Michael Jason Clarke (C-257/04), J.C. Caulfield, C.F. Caulfield, K.V. Barnes (C-257/04)

Defendants: R.D. Retail Services Ltd (C-131/04), Frank Staddon Ltd (C-257/04), Hanson Clay Products Ltd, formerly Marshalls Clay Products Ltd (C-257/04)

Re:

Reference for a preliminary ruling — Employment Tribunal — Interpretation of Article 7 of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1997 L 307, p. 18) — Compatibility with that article of provisions of national law which allow pay for annual leave to be included in a worker's hourly remuneration and paid as part of the remuneration for working time but not paid in respect of a period of leave actually taken (‘rolled up holiday pay’)

Operative part of the judgment

| 1. | Article 7(1) of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time precludes part of the remuneration payable to a worker for work done from being attributed to payment for annual leave without the worker receiving, in that respect, a payment additional to that for work done. There can be no derogation from that entitlement by contractual arrangement. |
| --- | --- |

1.

Article 7(1) of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time precludes part of the remuneration payable to a worker for work done from being attributed to payment for annual leave without the worker receiving, in that respect, a payment additional to that for work done. There can be no derogation from that entitlement by contractual arrangement.

| 2. | Article 7 of Directive 93/104 precludes the payment for minimum annual leave within the meaning of that provision from being made in the form of part payments staggered over the corresponding annual period of work and paid together with the remuneration for work done, rather than in the form of a payment in respect of a specific period during which the worker actually takes leave. |
| --- | --- |

2.

Article 7 of Directive 93/104 precludes the payment for minimum annual leave within the meaning of that provision from being made in the form of part payments staggered over the corresponding annual period of work and paid together with the remuneration for work done, rather than in the form of a payment in respect of a specific period during which the worker actually takes leave.

| 3. | Article 7 of Directive 93/104 does not preclude, as a rule, sums paid, transparently and comprehensibly, in respect of minimum annual leave, within the meaning of that provision, in the form of part payments staggered over the corresponding annual period of work and paid together with the remuneration for work done, from being set off against the payment for specific leave which is actually taken by the worker. |
| --- | --- |

3.

Article 7 of Directive 93/104 does not preclude, as a rule, sums paid, transparently and comprehensibly, in respect of minimum annual leave, within the meaning of that provision, in the form of part payments staggered over the corresponding annual period of work and paid together with the remuneration for work done, from being set off against the payment for specific leave which is actually taken by the worker.

---

(1)  OJ C 106, 30.04.2004.

OJ C 217, 28.08.2004.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/8 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/8

---

Judgment of the Court (First Chamber) of 30 March 2006 (reference for a preliminary ruling from the Korkein hallinto-oikeus) — Uudenkaupungin kaupunki

(Case C-184/04) (1)

(VAT - Deduction of input tax - Capital goods - Immovable property - Adjustment of deductions)

(2006/C 143/15)

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus (Finland)

Parties to the main proceedings

Applicant: Uudenkaupungin kaupunki

Re:

Preliminary ruling — Korkein hallinto-oikeus — Interpretation of the second subparagraph of Article 13(C), Article 17(6) and Article 20 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) — Deduction of input tax on immovable capital goods used in connection with transactions for which the taxable person subsequently opts to be taxable — National legislation under which the right to deduct is subject to exercising the right of option for taxation within six months from the bringing into use of the property

Operative part of the judgment

| 1. | Article 20 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, must be interpreted as meaning that, subject to the provisions of Article 20(5) thereof, it requires Member States to make provision for adjustment of deductions of value added tax on capital goods. |
| --- | --- |

1.

Article 20 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, must be interpreted as meaning that, subject to the provisions of Article 20(5) thereof, it requires Member States to make provision for adjustment of deductions of value added tax on capital goods.

| 2. | Article 20 of Sixth Directive 77/388 must be interpreted as meaning that the adjustment provided for therein is also applicable where the capital goods were first used in non-taxable activity that was not eligible for deduction and were then used in activity, subject to value added tax during the adjustment period. |
| --- | --- |

2.

Article 20 of Sixth Directive 77/388 must be interpreted as meaning that the adjustment provided for therein is also applicable where the capital goods were first used in non-taxable activity that was not eligible for deduction and were then used in activity, subject to value added tax during the adjustment period.

| 3. | The second subparagraph of Article 13(C) of Sixth Directive 77/388 must be interpreted as meaning that a Member State which gives its taxable persons the right to opt for taxation of the letting of a property is not permitted by that provision to exclude deduction of value added tax on immovable property investments made before that right of option is exercised, where the application to exercise that option has not been made within six months of the property being brought into use. |
| --- | --- |

3.

The second subparagraph of Article 13(C) of Sixth Directive 77/388 must be interpreted as meaning that a Member State which gives its taxable persons the right to opt for taxation of the letting of a property is not permitted by that provision to exclude deduction of value added tax on immovable property investments made before that right of option is exercised, where the application to exercise that option has not been made within six months of the property being brought into use.

| 4. | Article 17(6) of Sixth Directive 77/388 must be interpreted as meaning that a Member State which gives its taxable persons the right to opt for taxation of the letting of a property is not permitted by that provision to exclude deduction of value added tax on immovable property investments made before that right of option is exercised, where the application to exercise that option has not been made within six months of the property being brought into use. |
| --- | --- |

4.

Article 17(6) of Sixth Directive 77/388 must be interpreted as meaning that a Member State which gives its taxable persons the right to opt for taxation of the letting of a property is not permitted by that provision to exclude deduction of value added tax on immovable property investments made before that right of option is exercised, where the application to exercise that option has not been made within six months of the property being brought into use.

---

(1)  OJ C 156 of 12.06.2004.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/8 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/8

---

Judgment of the Court (Grand Chamber) of 2 May 2006 — United Kingdom of Great Britain and Northern Ireland v European Parliament and Council of the European Union

(Case C-217/04) (1)

(Regulation (EC) No 460/2004 - European Network and Information Security Agency - Choice of legal basis)

(2006/C 143/16)

Language of the case: English

Parties

Applicants: United Kingdom of Great Britain and Northern Ireland (represented by: M. Bethell, Agent, and by Lord Goldsmith, N. Paines and T. Ward, lawyers)

Defendants: European Parliament (represented by: K. Bradley and U. Rösslein, Agents); Council of the European Union (represented by: M. Veiga and A. Lopes Sabino, Agents)

Interveners in support of the defendant: Republic of Finland (represented by: T. Pynnä and A. Guimaraes-Purokoski, Agents); Commission of the European Communities (represented by: F. Benyon and M. Shotter, acting as Agents)

Re:

Annulment of Regulation (EC) No 460/2004 of the European Parliament and of the Council of 10 March 2004 establishing the European Network and Information Security Agency (OJ 2004 L 77, p. 1) — Choice of legal basis

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 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;

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

3.

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

---

(1)  OJ C 201, 7.8.2004.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/9 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/9

---

Judgment of the Court (First Chamber) of 6 April 2006 (reference for a preliminary ruling from the Verwaltungsgerichtshof) — EMAG Handel Eder OHG v Finanzlandesdirektion für Kärnten

(Case C-245/04) (1)

(Preliminary references - Sixth VAT Directive - Article 8(1)(a) and (b), the first subparagraph of Article 28a(1)(a), Article 28b(A)(1) and the first subparagraph of Article 28c(A)(a) - Intra-Community dispatch or transport of goods - Supplies - Intra-Community acquisition of goods - Chain transactions - Place of transaction)

(2006/C 143/17)

Language of the case: German

Referring court

Verwaltungsgerichtshof (Austria)

Parties to the main proceedings

Applicant: EMAG Handel Eder OHG

Defendant: Finanzlandesdirektion für Kärnten

Re:

Reference for a preliminary ruling — Verwaltungsgerichtshof — Interpretation of Article 8(1)(a) of Directive 77/388/EEC: Sixth Council Directive 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) — Place of supply in triangular operations or chain transactions — Purchase of goods by an undertaking established in a Member State from another undertaking established in the same Member State which is supplied by undertakings established in other Member States, where the goods are dispatched by the suppliers directly to the purchasing undertaking acquiring the goods

Operative part of the judgment

| 1. | Where two successive supplies of the same goods, effected for consideration between taxable persons acting as such, gives rise to a single intra-Community dispatch or a single intra-Community transport of those goods, that dispatch or transport can be ascribed to only one of the two supplies, which alone will be exempted from tax under the first subparagraph of Article 28c(A)(a) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 95/7/EC of 10 April 1995.
  That interpretation holds good regardless of which taxable person — the first vendor, the intermediary acquiring the goods or the second person acquiring the goods — has the right to dispose of the goods during that dispatch or transport. |
| --- | --- |

1.

Where two successive supplies of the same goods, effected for consideration between taxable persons acting as such, gives rise to a single intra-Community dispatch or a single intra-Community transport of those goods, that dispatch or transport can be ascribed to only one of the two supplies, which alone will be exempted from tax under the first subparagraph of Article 28c(A)(a) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 95/7/EC of 10 April 1995.

That interpretation holds good regardless of which taxable person — the first vendor, the intermediary acquiring the goods or the second person acquiring the goods — has the right to dispose of the goods during that dispatch or transport.

| 2. | Only the place of the supply which gives rise to dispatch or intra-Community transport of goods is determined in accordance with Article 8(1)(a) of the Sixth Directive 77/388/EEC, as amended by Directive 95/7; that place is deemed to be in the Member State of the departure of that dispatch or transport. The place of the other supply is determined in accordance with Article 8(1)(b) of that directive; that place is deemed to be either in the Member State of departure or in the Member State of arrival of that dispatch or transport, according to whether that supply is the first or the second of the two successive supplies. |
| --- | --- |

2.

Only the place of the supply which gives rise to dispatch or intra-Community transport of goods is determined in accordance with Article 8(1)(a) of the Sixth Directive 77/388/EEC, as amended by Directive 95/7; that place is deemed to be in the Member State of the departure of that dispatch or transport. The place of the other supply is determined in accordance with Article 8(1)(b) of that directive; that place is deemed to be either in the Member State of departure or in the Member State of arrival of that dispatch or transport, according to whether that supply is the first or the second of the two successive supplies.

---

(1)  OJ C 251, 9.1.2004.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/10 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/10

---

Judgment of the Court (Third Chamber) of 30 March 2006 (reference for a preliminary ruling from the High Court of Justice (Queen's Bench Division)) — Elizabeth Florence Emanuel v Continental Shelf 128 Ltd,

(Case C-259/04) (1)

(Trade marks of such a nature as to deceive the public or liable to mislead the public as to the nature, quality or geographical origin of a product - Trade mark assigned by the proprietor together with the undertaking producing the goods to which the mark relates - Directive 89/104/EEC)

(2006/C 143/18)

Language of the case: English

Referring court

High Court of Justice (Queen's Bench Division)

Parties to the main proceedings

Applicant(s): Elizabeth Florence Emanuel

Defendant(s): Continental Shelf 128 Ltd,

Re:

Reference for a preliminary ruling — High Court of Justice (Queen's Bench Division) — Interpretation of Articles 3(1)(g) and 12(2)(b) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks — Trade marks which are of such a nature as to deceive the public or to mislead it as to the nature, quality or geographical origin of a product — Trade mark assigned by the proprietor together with the undertaking producing the goods to which that mark relates — ‘Elizabeth Emanuel’ wedding dresses

Operative part of the judgment

| 1. | A trade mark corresponding to the name of the designer and first manufacturer of the goods bearing that mark may not, by reason of that particular feature alone, be refused registration on the ground that it would deceive the public, within the meaning of Article 3(1)(g) of Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, in particular where the goodwill associated with that trade mark, previously registered in a different graphic form, has been assigned together with the business making the goods to which the mark relates. |
| --- | --- |

1.

A trade mark corresponding to the name of the designer and first manufacturer of the goods bearing that mark may not, by reason of that particular feature alone, be refused registration on the ground that it would deceive the public, within the meaning of Article 3(1)(g) of Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, in particular where the goodwill associated with that trade mark, previously registered in a different graphic form, has been assigned together with the business making the goods to which the mark relates.

| 2. | A trade mark corresponding to the name of the designer and first manufacturer of the goods bearing that mark is not, by reason of that particular feature alone, liable to revocation on the ground that that mark would mislead the public, within the meaning of Article 12(2)(b) of Directive 89/104, in particular where the goodwill associated with that mark has been assigned together with the business making the goods to which the mark relates. |
| --- | --- |

2.

A trade mark corresponding to the name of the designer and first manufacturer of the goods bearing that mark is not, by reason of that particular feature alone, liable to revocation on the ground that that mark would mislead the public, within the meaning of Article 12(2)(b) of Directive 89/104, in particular where the goodwill associated with that mark has been assigned together with the business making the goods to which the mark relates.

---

(1)  OJ C 217 28.8.2004.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/10 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/10

---

Judgment of the Court (First Chamber) of 6 April 2006 (reference for a preliminary ruling from the Finanzgericht Hamburg) — ED & F Man Sugar Ltd v Hauptzollamt Hamburg-Jonas

(Case C-274/04) (1)

(Agriculture - Regulation (EEC) No 3665/87 - Export refunds - Sanction applied following a decision to recover a refund that has become final - Possibility of re-examining the decision imposing a sanction)

(2006/C 143/19)

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: ED & F Man Sugar Ltd

Defendant: Hauptzollamt Hamburg-Jonas

Re:

Reference for a preliminary ruling — Finanzgericht Hamburg (Finance Court) Hamburg — Interpretation of Article 11(1) and (3) of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1987 L 351, p. 1), as amended by Commission Regulation (EC) No 2945/94 of 2 December 1994 (OJ 1994 L 310, p. 57) — Sanctions for requesting a refund in excess of that applicable — Whether national authorities or courts may re-examine, in the context of an action brought by an exporter against a decision imposing a sanction on him, the final decision ordering repayment of amounts wrongly received — Misinterpretation of Community law

Operative part of the judgment

The first subparagraph of Article 11(1) of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Commission Regulation No 2945/94 of 2 December 1994, must be interpreted as meaning that, in an appeal against a decision imposing a sanction on the basis of that provision, the national authorities and courts are entitled to examine whether the exporter requested a refund in excess of that applicable within the meaning of that provision, notwithstanding the fact that a reimbursement decision provided for in the first subparagraph of Article 11(3) of that Regulation has become final before the decision imposing a sanction was issued.

---

(1)  OJ C 228, 11.9.2004

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/11 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/11

---

Judgment of the Court (Grand Chamber) Chamber) of 2 May 2006 (reference for a preliminary ruling from the Supreme Court (Ireland)) Eurofood IFCS Ltd — Enrico Bondi v Bank of America N.A., Pearse Farrell, Official Liquidator, Director of Corporate Enforcement, Certificate/Note holders

(Case C-341/04) (1)

(Judicial cooperation in civil matters - Regulation (EC) No 1346/2000 - Insolvency proceedings - Decision to open the proceedings - Centre of the debtor's main interests - Recognition of insolvency proceedings - Public policy (keywords)

(2006/C 143/20)

Language of the case: English

Referring court

Supreme Court (Ireland)

Parties to the main proceedings

Applicant: Enrico Bondi

Defendant(s): Bank of America N.A., Pearse Farrell, Official Liquidator, Director of Corporate Enforcement, Certificate/Note holders

Re:

Interpretation of Articles 1, 2, 3 and 16 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings — Order appointing a provisional liquidator pending a final order — Whether that order may be regarded as a judgment opening insolvency proceedings — Court with jurisdiction to open insolvency proceedings

Operative part of the judgment

| 1. | Where a debtor is a subsidiary company whose registered office and that of its parent company are situated in two different Member States, the presumption laid down in the second sentence of Article 3(1) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, whereby the centre of main interests of that subsidiary is situated in the Member State where its registered office is situated, can be rebutted only if factors which are both objective and ascertainable by third parties enable it to be established that an actual situation exists which is different from that which location at that registered office is deemed to reflect. That could be so in particular in the case of a company not carrying out any business in the territory of the Member State in which its registered office is situated. By contrast, where a company carries on its business in the territory of the Member State where its registered office is situated, the mere fact that its economic choices are or can be controlled by a parent company in another Member State is not enough to rebut the presumption laid down by that Regulation. |
| --- | --- |

1.

Where a debtor is a subsidiary company whose registered office and that of its parent company are situated in two different Member States, the presumption laid down in the second sentence of Article 3(1) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, whereby the centre of main interests of that subsidiary is situated in the Member State where its registered office is situated, can be rebutted only if factors which are both objective and ascertainable by third parties enable it to be established that an actual situation exists which is different from that which location at that registered office is deemed to reflect. That could be so in particular in the case of a company not carrying out any business in the territory of the Member State in which its registered office is situated. By contrast, where a company carries on its business in the territory of the Member State where its registered office is situated, the mere fact that its economic choices are or can be controlled by a parent company in another Member State is not enough to rebut the presumption laid down by that Regulation.

| 2. | On a proper interpretation of the first subparagraph of Article 16(1) of Regulation No 1346/2000, the main insolvency proceedings opened by a court of a Member State must be recognised by the courts of the other Member States, without the latter being able to review the jurisdiction of the court of the opening State. |
| --- | --- |

2.

On a proper interpretation of the first subparagraph of Article 16(1) of Regulation No 1346/2000, the main insolvency proceedings opened by a court of a Member State must be recognised by the courts of the other Member States, without the latter being able to review the jurisdiction of the court of the opening State.

| 3. | On a proper interpretation of the first subparagraph of Article 16(1) of the Regulation, a decision to open insolvency proceedings for the purposes of that provision is a decision handed down by a court of a Member State to which application for such a decision has been made, based on the debtor's insolvency and seeking the opening of proceedings referred to in Annex A to the Regulation, where that decision involves the divestment of the debtor and the appointment of a liquidator referred to in Annex C to the Regulation. Such divestment implies that the debtor loses the powers of management that he has over his assets. |
| --- | --- |

3.

On a proper interpretation of the first subparagraph of Article 16(1) of the Regulation, a decision to open insolvency proceedings for the purposes of that provision is a decision handed down by a court of a Member State to which application for such a decision has been made, based on the debtor's insolvency and seeking the opening of proceedings referred to in Annex A to the Regulation, where that decision involves the divestment of the debtor and the appointment of a liquidator referred to in Annex C to the Regulation. Such divestment implies that the debtor loses the powers of management that he has over his assets.

| 4. | On a proper interpretation of Article 26 of the Regulation, a Member State may refuse to recognise insolvency proceedings opened in another Member State where the decision to open the proceedings was taken in flagrant breach of the fundamental right to be heard, which a person concerned by such proceedings enjoys. |
| --- | --- |

4.

On a proper interpretation of Article 26 of the Regulation, a Member State may refuse to recognise insolvency proceedings opened in another Member State where the decision to open the proceedings was taken in flagrant breach of the fundamental right to be heard, which a person concerned by such proceedings enjoys.

---

(1)  OJ C 251, 9.10.2004.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/12 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/12

---

Judgment of the Court (First Chamber) of 6 April 2006 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Puglia) — Associazione Nazionale Autotrasporto Viaggiatori (ANAV) v Commune di Bari, A.M.T.A.B. Servizio SpA

(Case C-410/04) (1)

(Freedom to provide services - Local public transport service - Award with no call for tenders - Award by a public authority to an undertaking of which it owns the share capital)

(2006/C 143/21)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale per la Puglia

Parties to the main proceedings

Applicant: Associazione Nazionale Autotrasporto Viaggiatori (ANAV)

Defendant: Commune di Bari, A.M.T.A.B. Servizio SpA

Re:

Reference for a preliminary ruling — Tribunale Amministrativo Regionale per la Puglia — Compatibility with Articles 46, 49 and 86 EC of national legislation permitting a municipality to award the management of a local public transport service to a company the share capital of which is wholly public — Award not made following the procedures laid down by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1)

Operative part of the judgment

Articles 43 EC, 49 EC and 86 EC, and the principles of equal treatment, non-discrimination on grounds of nationality and transparency do not preclude national legislation which allows a public authority to award a contract for the provision of a public service directly to a company of which it wholly owns the share capital, provided that the public authority exercises over that company control comparable to that exercised over its own departments and that that company carries out the essential part of its activities with the controlling authority.

---

(1)  OJ C 300, 4.12.2004.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/12 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/12

---

Judgment of the Court (Grand Chamber) of 2 May 2006 — Regione Siciliana v Commission of the European Communities

(Case C-417/04 P) (1)

(Appeal - European Regional Development Fund (ERDF) - Closure of Community financial assistance - Action for annulment - Admissibility - Local or regional entity - Measures of direct and individual concern to that entity - Direct concern)

(2006/C 143/22)

Language of the case: Italian

Parties

Appellant: Regione Siciliana (represented by: A. Cingolo and G. Aiello, lawyers)

Other party to the proceedings: Commission of the European Communities (represented by: E. de March and L. Flynn, agents)

Re:

Appeal against the order made on 8 July 2004 by the Court of First Instance (Third Chamber) in Case T-341/02 Regione Siciliana v Commission declaring inadmissible an application seeking annulment of Commission Decision D(2002)810439 of 5 September 2002 closing the file relating to the European Regional Development Fund (ERDF) financial assistance for the major project ‘Messina-Palermo motorway’

Operative part of the judgment

The Court hereby:

| 1. | Dismisses the appeal; |
| --- | --- |

1.

Dismisses the appeal;

| 2. | Orders the Regione Siciliana to pay the costs. |
| --- | --- |

2.

Orders the Regione Siciliana to pay the costs.

---

(1)  OJ C 300, 4.12.2004.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/13 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/13

---

Judgment of the Court (First Chamber) of 27 April 2006 (reference for a preliminary ruling from the Social Security Commissioner) — Sarah Margaret Richards v Secretary of State for Work and Pensions

(Case C-423/04) (1)

(Equal treatment for men and women in matters of social security - Directive 79/7/EEC - Refusal to award a retirement pension at the age of 60 to a transsexual who has undergone male-to-female gender reassignment surgery)

(2006/C 143/23)

Language of the case: English

Referring court

Social Security Commissioner

Parties to the main proceedings

Applicant: Sarah Margaret Richards

Defendant: Secretary of State for Work and Pensions

Re:

Reference for a preliminary ruling — Social Security Commissioner — Interpretation of Articles 4 and 7 of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security — Refusal to award a retirement pension at the age of 60 to a male-to-female transsexual, the age at which entitlement to such a pension would have arisen if that person had been born female.

Operative part of the judgment

The Court:

| 1. | Article 4(1) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security is to be interpreted as precluding legislation which denies a person who, in accordance with the conditions laid down by national law, has undergone male-to-female gender reassignment entitlement to a retirement pension on the ground that she has not reached the age of 65, when she would have been entitled to such a pension at the age of 60 had she been held to be a woman as a matter of national law. |
| --- | --- |

1.

Article 4(1) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security is to be interpreted as precluding legislation which denies a person who, in accordance with the conditions laid down by national law, has undergone male-to-female gender reassignment entitlement to a retirement pension on the ground that she has not reached the age of 65, when she would have been entitled to such a pension at the age of 60 had she been held to be a woman as a matter of national law.

| 2. | There is no need to limit the temporal effects of this judgment. |
| --- | --- |

2.

There is no need to limit the temporal effects of this judgment.

---

(1)  OJ C 300, 4.12.2004.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/13 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/13

---

Judgment of the Court (Third Chamber) of 6 April 2006 — Commission of the European Communities v Republic of Austria

(Case C-428/04) (1)

(Failure to fulfil obligations - Directive 89/391/EEC - Measures to encourage improvements in the safety and health of workers at work - Failure to notify implementing measures - Incorrect or inadequate implementation - Articles 2(1), 7(3), 8(2), 11(2)(c) and (d), 13(2)(b) and 18)

(2006/C 143/24)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: V. Kreuschitz, N. Yerrell and H. Kreppel, Agents)

Defendant: Republic of Austria (represented by: C. Pesendorfer, Agent)

Re:

Failure of a Member State to fulfil obligations — Incomplete and incorrect transposition of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the prescribed period, the Law on the Rules governing Teachers in the Länder (Landeslehrer-Dienstrechtsgesetz), contrary to the requirements of Article 18(1) of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work, and by failing to implement, or to implement in full, Article 2(1), in respect of compulsory education teachers in the Tyrol, and Articles 7(3), 8(2), 11(2)(c) and (d) and 13(2)(b) of that directive, the Republic of Austria has failed to fulfil its obligations under those provisions of the Directive; |
| --- | --- |

1.

Declares that, by failing to adopt, within the prescribed period, the Law on the Rules governing Teachers in the Länder (Landeslehrer-Dienstrechtsgesetz), contrary to the requirements of Article 18(1) of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work, and by failing to implement, or to implement in full, Article 2(1), in respect of compulsory education teachers in the Tyrol, and Articles 7(3), 8(2), 11(2)(c) and (d) and 13(2)(b) of that directive, the Republic of Austria has failed to fulfil its obligations under those provisions of the Directive;

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

2.

Dismisses the remainder of the action;

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

3.

Orders the Republic of Austria to bear its own costs and five sixths of the costs of the Commission of the European Communities.

---

(1)  OJ C 314, 18.12.2004.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/14 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/14

---

Judgment of the Court (Third Chamber) of 27 April 2006 (references for a preliminary ruling from the Hoge Raad der Nederlanden) — H.A. Solleveld (C-443/04) and J.E. van den Hout-van Eijnsbergen (C-444/04) v Staatssecretaris van Financiën

(Joined Cases C-443/04 and C-444/04) (1)

(Sixth VAT Directive - Article 13A(1)(c) - Exemptions - Provision of medical care in the exercise of the medical and paramedical professions - Therapeutic treatments given by a physiotherapist and a psychotherapist - Definition by the Member State concerned of paramedical professions - Discretion - Limits)

(2006/C 143/25)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: H.A. Solleveld, J.E. van den Hout-van Eijnsbergen

Defendant: Staatssecretaris van Financiën

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Article 13A(1)(c) of Directive 77/388/EEC: Sixth Council Directive 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) — Exemption for medical care provided in the exercise of the medical and paramedical professions, as defined by the Member State concerned — Activities carried out by a physiotherapist outside the scope of the national medical and paramedical activities

Operative part of the judgment

Article 13A(1)(c) 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 must be interpreted as meaning that it confers on the Member States the discretion to define the paramedical professions and the medical care coming within the scope of such professions for the purpose of the exemption laid down by that provision. However, the Member States must, in the exercise of that discretion, comply with the objective pursued by the said provision, which is to ensure that the exemption applies solely to services provided by persons with the required professional qualifications, and the principle of fiscal neutrality.

National legislation which excludes the profession of psychotherapist from the definition of the paramedical professions is contrary to the said objective and principle only to the extent that psychotherapeutic treatments would, if carried out by psychiatrists, psychologists or any other medical or paramedical profession, be exempt from value added tax, whereas, carried out by psychotherapists, they can be regarded as being of equivalent quality having regard to the professional qualifications of the latter, a matter which it is for the referring court to determine.

National legislation which excludes certain specific medical-care activities, such as treatments using disturbance field diagnostics, carried out by physiotherapists from the definition of that paramedical profession is contrary to the said objective and principle only to the extent that such treatments carried out in the context of the said activities would, if carried out by doctors or dentists, be exempt from value added tax, whereas, carried out by physiotherapists, they can be regarded as being of equivalent quality having regard to the professional qualifications of the latter, a matter which it is for the referring court to determine.

---

(1)  OJ C 6, 8.1.2005.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/15 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/15

---

Judgment of the Court (Second Chamber) of 6 April 2006 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Sicilia) — Agip Petroli SpA v Capitaneria di porto di Siracusa, Capitaneria di porto di Siracusa — Sezione staccato di Santa Panagia, Ministero delle Infrastrutture e dei Trasporti

(Case C-456/04) (1)

(Maritime cabotage - Regulation (EEC) No 3577/92 - Law applicable to the manning of vessels over 650 gt carrying out island cabotage - Meaning of ‘voyage which follows or precedes’ a voyage to or from another State)

(2006/C 143/26)

Language of the case:Italian

Referring court

Tribunale Amministrativo Regionale per la Sicilia

Parties to the main proceedings

Applicant: Agip Petroli SpA

Defendants: Capitaneria di porto di Siracusa, Capitaneria di porto di Siracusa — Sezione staccato di Santa Panagia, Ministero delle Infrastrutture e dei Trasporti

Re:

Reference for a preliminary ruling — Tribunale Amministrativo Regionale per la Secilia — Interpretation of Article 3(3) of Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (OJ 1992 L 364, p. 7) — Law applicable to the manning of vessels over 650 gt carrying out island cabotage –Meaning of voyage which follows or precedes a voyage to or from another Member State

Operative part of the judgment

A ‘voyage which follows or precedes’ the cabotage voyage, as referred to in Article 3(3) of Council Regulation (EEC) No 3577/92 of 7 December applying the principle of freedom to provide services to maritime transport within Member States (maritme cabotoge), means in principle any voyage to or from another State, whether or not the vessel has cargo on board. However, sham voyages without cargo on board carried out to circumvent Regulation (EC) No 3577/92 cannot be permitted. Such an abuse can be found to exist only if, first, notwithstanding that technically the conditions laid down by Article 3(3) of the regulation apply, the result of the international voyage in ballast is that the shipowner benefits, in respect of all matters relating to manning from the application of the law of the flag State, frustrating the aim of Article 3(2) of the regulation, which is to allow the application of the law of the host State to all matters relating to manning in the case of island cabotage. Second, there must also be objective evidence to show that the essential aim of the international voyage in ballast is to avoid the application of Article 3(2) of Regulation (EC) No 3577/92, in favour of Article 3(3).

---

(1)  OJ C 19, 22.1.2005.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/15 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/15

---

Judgment of the Court (Third Chamber) of 9 March 2006 (reference for a preliminary ruling from the Gerechtshof te 's-Hertogenbosch) — L.H. Piatkowski v Inspecteur van de Belastingdienst — grote ondernemingen Eindhoven

(Case C-493/04) (1)

(Freedom of movement for workers - Social security - Person simultaneously employed in one Member State and self-employed in another Member State - Person subject to the social security legislation of each of those States - Regulation (EEC) No 1408/71 - Article 14c(b) and Annex VII - Social security contributions levied on interest paid by a company established in one Member State to a person resident in another Member State)

(2006/C 143/27)

Language of the case: Dutch

Referring court

Gerechtshof te 's-Hertogenbosch

Parties to the main proceedings

Applicant: L.H. Piatkowski

Defendant: Inspecteur van de Belastingdienst — grote ondernemingen Eindhoven

Re:

Reference for a preliminary ruling — Gerechtshof te 's-Hertogenbosch — Interpretation of Article 14c(b) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1), and of Council Regulation (EEC) No 574/72 of 21 March 1972 fixing the procedure for implementing Regulation No 1408/71, as amended and updated by Regulation No 118/97 — Application of Article 14c(b) in conjunction with Annex VII, point 1 — Social security — Person simultaneously subject to the legislation of two Member States

Operative part of the judgment

Articles 48 and 52 of the EC Treaty (now, after amendment, Articles 39 and 43 EC) concerning, respectively, freedom of movement for workers and freedom of establishment, and Article 14c(b) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Council Regulation (EC) No 1606/98 of 29 June 1998, must be interpreted as not precluding Netherlands legislation which includes, in the basis for calculating social security contributions, interest such as that paid, in the case in the main proceedings, by a company established in the Netherlands to a Netherlands national resident in Belgium who is subject, under that regulation and taking into account the nature of his occupational activities, to the social security legislation of both those Member States.

---

(1)  OJ C 31, 05.02.2005.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/16 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/16

---

Judgment of the Court (Fourth Chamber) of 30 March 2006 (reference for a preliminary ruling from the Hoge Raad der Nederlanden) — A.C. Smits-Koolhoven v Staatssecretaris van Financiën

(Case C-495/04) (1)

(Directive 95/59 - Tax on the consumption of manufactured tobacco - Herbal cigarettes - Used exclusively for medical purposes)

(2006/C 143/28)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: A.C. Smits-Koolhoven

Defendant: Staatssecretaris van Financiën

Re:

Reference for a preliminary ruling — Hoge Raad der Nederlanden — Interpretation of Art. 7(2) of Council Directive 95/59/EC of 27 November 1995 on taxes other than turnover taxes which affect the consumption of manufactured tobacco (OJ 1995 L 291, p. 40 — Medicinal cigarettes — Exclusively medical purpose — Therapeutic or prophylactic purposes

Operative part of the judgment

Article 7(2) of Council Directive 95/59/EC of 27 November 1995 on taxes other than turnover taxes which affect the consumption of manufactured tobacco must be interpreted as meaning that cigarettes without tobacco which do not contain substances having a medical effect but which are presented and marketed as an aid to giving up smoking are not ‘used exclusively for medical purposes’ within the meaning of the second subparagraph of that provision.

---

(1)  OJ C 31, 5.2.2005.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/16 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/16

---

Judgment of the Court (Second Chamber) of 16 February 2006 (reference for a preliminary ruling from the Bundesverwaltungsgericht — Ergün Torun v Stadt Augsburg)

(Case C-502/04) (1)

(EEC-Turkey Association - Freedom of movement for workers - Article 7, second paragraph, of Decision No 1/80 of the Association Council - Child of a Turkish worker who has reached the age of majority and completed a course of vocational training in the host Member State - Criminal conviction - Effect on right of residence)

(2006/C 143/29)

Language of the case: German

Referring court

Bundesverwaltungsgericht (Germany)

Parties to the main proceedings

Applicant: Ergün Torun

Defendant: Stadt Augsburg

Re:

Reference for a preliminary ruling — Bundesverwaltungsgericht — Interpretation of Articles 6, 7 and 14 of Decision 1/80 of the EEC/Turkey Association Council — Turkish national who is a member of the family of a Turkish worker, who is duly registered as belonging to the labour force in a Member State, and who has been given a three year prison sentence, not suspended — Loss of right of residence

Operative part of the judgment

The child, who has reached the age of majority, of a Turkish migrant worker who has been legally employed in a Member State for more than three years, and who has successfully finished a vocational training course in that State and satisfies the conditions set out in the second paragraph of Article 7 of Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council established by the Association Agreement between the European Economic Community and Turkey, does not lose the right of residence that is the corollary of the right to respond to any offer of employment conferred by that provision except in the circumstances laid down in Article 14(1) of that provision or when he leaves the territory of the host Member State for a significant length of time without legitimate reason.

---

(1)  OJ C 31, 05.02.2005.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/17 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/17

---

Judgment of the Court (First Chamber) of 30 March 2006 (reference for a preliminary ruling from the Cour administrative) — Cynthia Mattern, Hajrudin Cikotic v Ministre du Travail et de l'Emploi

(Case C-10/05) (1)

(Freedom of movement for persons - Workers - Family members - Right of a national of a third country married to a Community national to take up an activity as an employed person - Conditions)

(2006/C 143/30)

Language of the case: French

Referring court

Cour administrative

Parties to the main proceedings

Applicants: Cynthia Mattern, Hajrudin Cikotic

Defendant: Ministre du Travail et de l'Emploi

Re:

Reference for a preliminary ruling — Cour administrative — Interpretation of Article 39 of the EC Treaty and of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition, 1968 (II), p. 475) — National of a third country, married to a national of a Member State, seeking exemption from the requirement to obtain a work permit in that Member State — Community national spouse who has attended a vocational training course and professional training in another Member State

Operative part of the judgment

In circumstances such as those in the main proceedings, Article 11 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992, does not confer on a national of a third country the right to take up an activity as an employed person in a Member State other than the one in which his spouse, a Community national, pursues or has pursued an activity as an employed person in exercise of her right to free movement.

---

(1)  OJ C 69, 19.03.2005.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/17 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/17

---

Judgment of the Court (Fifth Chamber) of 27 April 2006 (reference for a preliminary ruling from the Gerechtshof te Amsterdam ) — Kawasaki Motors Europe NV v Inspecteur van de Belastingdienst/Douane district Rotterdam

(Case C-15/05) (1)

(Common Customs Tariff - Tariff headings - Classification of vehicles - Tractors - Cars and vehicles principally designed for the transport of persons - Regulation (EC) No 2518/98 - Point 5 of the annexed table - Invalidity)

(2006/C 143/31)

Language of the case: Dutch

Referring court

Gerechtshof te Amsterdam

Parties to the main proceedings

Applicant: Kawasaki Motors Europe NV

Defendant: Inspecteur van de Belastingdienst/Douane district Rotterdam

Re:

Reference for a preliminary ruling — Gerechtshof te Amsterdam — Validity of Commission Regulation (EC) No 2518/98 of 23 November 1998 concerning the classification of certain goods in the Combined Nomenclature (OJ 1998 L 315, p. 3) — New (all terrain) vehicles designed for hauling or pushing another vehicle, appliance or load, considered suitable for transporting persons — Tariff classification — Heading 87 03 21 and heading 87 01 90.

Operative part of the judgment

The Court:

| 1. | By adopting a capacity different from that contained in the Harmonised System Committee's classification opinion of 1999 for vehicles described in subheading 8703 21 10 of the Combined Nomenclature, namely the capacity to tow loads three times their own weight or more, and thereby extending the scope of the heading covering vehicles principally designed for the transport of persons, point 5 of the table annexed to Commission Regulation (EC) No 2518/98 of 23 November 1998 concerning the classification of certain goods in the Combined Nomenclature is invalid. |
| --- | --- |

1.

By adopting a capacity different from that contained in the Harmonised System Committee's classification opinion of 1999 for vehicles described in subheading 8703 21 10 of the Combined Nomenclature, namely the capacity to tow loads three times their own weight or more, and thereby extending the scope of the heading covering vehicles principally designed for the transport of persons, point 5 of the table annexed to Commission Regulation (EC) No 2518/98 of 23 November 1998 concerning the classification of certain goods in the Combined Nomenclature is invalid.

| 2. | New all terrain four-wheeled vehicles with one seat only, fitted with Ackerman steering controlled by a handlebar, equipped with a towing hitch and the technical characteristics of which enable them to push twice their own weight or more, must be classified in subheading 8701 90 of that Nomenclature. It is for the Gerechtshof te Amsterdam to classify such vehicles in the subheadings which correspond to their engine power. |
| --- | --- |

2.

New all terrain four-wheeled vehicles with one seat only, fitted with Ackerman steering controlled by a handlebar, equipped with a towing hitch and the technical characteristics of which enable them to push twice their own weight or more, must be classified in subheading 8701 90 of that Nomenclature. It is for the Gerechtshof te Amsterdam to classify such vehicles in the subheadings which correspond to their engine power.

---

(1)  OJ C 82, 2.4.2005.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/18 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/18

---

Judgment of the Court (First Chamber) of 27 April 2006 (reference for a preliminary ruling from the Finanzgericht Hamburg) — Elfering Export GmbH v Hauptzollamt Hamburg-Jonas

(Case C-27/05) (1)

(Export refunds - Material condition - Regulation (EC) No 800/1999 - Beef and veal - Absence of proof as to the origin of the products - Applicability of penalties)

(2006/C 143/32)

Language of the case: German

Referring court

Finanzgericht Hamburg (Germany)

Parties to the main proceedings

Applicant: Elfering Export GmbH

Defendant: Hauptzollamt Hamburg-Jonas

Re:

Reference for a preliminary ruling — Finanzgericht Hamburg — Interpretation of Articles 5(4) and 51(2) of Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1999 L 102, p. 11) — Indication, in the export declaration, that the products are of Community origin — Lack of proof of the products' origin — Applicability of penalties

Operative part of the judgment

The declaration made in an export declaration that the product in respect of which a refund is sought is of Community origin is information to which a penalty may attach under Article 51(2) of Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products in conjunction with Article 5(4) thereof.

---

(1)  OJ C 82, 02.04.2005.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/19 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/19

---

Judgment of the Court (First Chamber) of 6 April 2006 (reference for a preliminary ruling from the Gerechtshof te 's-Gravenhage) — Federatie Nederlandse Vakbeweging v Staat der Nederlanden

(Case C-124/05) (1)

(Social policy - Protection of the safety and health of workers - Directive 93/104/EC - Right to paid annual leave - Financial compensation for not taking the minimum period of paid annual leave)

(2006/C 143/33)

Language of the case: Dutch

Referring court

Gerechtshof te 's-Gravenhage

Parties to the main proceedings

Applicant: Federatie Nederlandse Vakbeweging (FNV)

Defendant: Staat der Nederlanden

Re:

Preliminary ruling — Gerechtshof te 's-Gravenhage — Interpretation of Article 7(2) 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) — Compatibility with a national provision under which it is possible to agree in writing, over the duration of a contract of employment, to grant financial compensation in the following year in respect of minimum annual leave which has not been used up

Operative part of the judgment

Article 7 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, must be interpreted as precluding a national provision which, during a contract of employment, permits days of annual leave, within the meaning of Article 7(1) of the directive, which are not taken in the course of a given year, to be replaced by an allowance in lieu in the course of a subsequent year.

---

(1)  OJ C 155, 25.6.2005.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/19 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/19

---

Judgment of the Court (Third Chamber) of 27 April 2006 (reference for a preliminary ruling from the Cour de cassation (Belgium)) — Levi Strauss & Co. v Casucci SpA

(Case C-145/05) (1)

(Trade marks - Directive 89/104/EEC - Article 5(1)(b) - Relevant time for assessing likelihood of confusion between a trade mark and a similar sign - Loss of distinctive character owing to conduct of the proprietor of the trade mark after use of the sign has commenced)

(2006/C 143/34)

Language of the case: French

Referring court

Cour de cassation (Belgium)

Parties to the main proceedings

Applicant: Levi Strauss & Co.

Defendant: Casucci SpA

Re:

Reference for a preliminary ruling — Cour de cassation (Belgium) — Interpretation of Article 5(1) of Directive 89/104/EEC: First Council Directive of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) — Relevant time for appreciation of the likelihood of confusion between a trade mark and a similar sign — Loss of distinctiveness as a result of the trade mark owner's conduct after use of the sign began

Operative part of the judgment

| 1. | Article 5(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that, in order to determine the scope of protection of a trade mark which has been lawfully acquired on the basis of its distinctive character, the national court must take into account the perception of the public concerned at the time when the sign, the use of which infringes that trade mark, began to be used. |
| --- | --- |

1.

Article 5(1) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks must be interpreted as meaning that, in order to determine the scope of protection of a trade mark which has been lawfully acquired on the basis of its distinctive character, the national court must take into account the perception of the public concerned at the time when the sign, the use of which infringes that trade mark, began to be used.

| 2. | Where the competent national court finds that the sign in question constituted an infringement of the mark at the time when the sign began to be used, it is for that court to take such measures as prove to be the most appropriate in the light of the circumstances of the case in order to safeguard the proprietor's rights deriving from Article 5(1) of Directive 89/104; such measures may include, in particular, an order to cease use of that sign. |
| --- | --- |

2.

Where the competent national court finds that the sign in question constituted an infringement of the mark at the time when the sign began to be used, it is for that court to take such measures as prove to be the most appropriate in the light of the circumstances of the case in order to safeguard the proprietor's rights deriving from Article 5(1) of Directive 89/104; such measures may include, in particular, an order to cease use of that sign.

| 3. | It is not appropriate to order cessation of the use of the sign in question if it has been established that the trade mark has lost its distinctive character, in consequence of acts or inactivity of the proprietor, so that it has become a common name within the meaning of Article 12(2) of Directive 89/104, and the trade mark has therefore been revoked. |
| --- | --- |

3.

It is not appropriate to order cessation of the use of the sign in question if it has been established that the trade mark has lost its distinctive character, in consequence of acts or inactivity of the proprietor, so that it has become a common name within the meaning of Article 12(2) of Directive 89/104, and the trade mark has therefore been revoked.

---

(1)  OJ C 132, 28.5.2005.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/20 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/20

---

Judgment of the Court (Sixth Chamber) of 27 April 2006 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-180/05) (1)

(Failure of a Member State to fulfil its obligations - Directive 92/100/EEC - Rights related to copyright in the field of intellectual property - Public lending right - Failure to transpose within the period prescribed)

(2006/C 143/35)

Language of the case: French

Parties

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

Defendant: Grand Duchy of Luxembourg (represented by: M. S. Schreiner, Agent)

Re:

Failure of a Member State to fulfil its obligations — Infringements of Articles 1 and 5 of Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 1992 L 346, p. 1)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to apply the provisions on public lending right provided for in Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Articles 1 and 5 of that directive; |
| --- | --- |

1.

Declares that, by failing to apply the provisions on public lending right provided for in Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Articles 1 and 5 of that directive;

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

2.

Orders the Grand Duchy of Luxembourg to pay the costs.

---

(1)  OJ C 171 of 9.7.2005

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/20 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/20

---

Order of the Court of 21 November 2005 — SNF SA v Commission of the European Communities

(Case C-482/04 P) (1)

(Appeal - Directive on cosmetic products - Restrictions on the use of polyacrylamides in the composition of cosmetic products)

(2006/C 143/36)

Language of the case: English

Parties

Applicant: SNF SA (represented by: K. Van Maldegem and C. Mereu, lawyers)

Other party to the proceedings: Commission of the European Communities (represented by: X. Lewis and A. Caeiros, acting as Agents)

Re:

Appeal against the Order of the Court of First Instance (Fifth Chamber) of 6 September 2004 in Case T-213/02 SNF v Commission, declaring inadmissible an application for the partial annulment of the Twenty-sixth Commission Directive 2002/34/EC of 15 April 2002 adapting to technical progress Annexes II, III and VII to Council Directive 76/748/EEC on the approximation of the laws of the Member States relating to cosmetic products (OJ 2002 L 102, p. 19)

Operative part of the order

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

1.

The appeal is dismissed.

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

2.

SNF SA is ordered to pay the costs.

---

(1)  OJ C 19, 22.1.2005.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/21 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/21

---

Appeal brought on 9 May 2005 by Carlos Correia de Matos against the order of the Court of First Instance (First Chamber) of 23 February 2005 in Case T-454/04 Carlos Correia de Matos v Commission

(Case C-200/05 P)

(2006/C 143/37)

Language of the case: Portuguese

Parties

Appellant: Carlos Correia de Matos (represented by: Carlos Correia de Matos)

Other party to the proceedings: Commission of the European Communities

By order of 16 March 2006 the Court of Justice held that the appeal was inadmissible.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/21 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/21

---

Appeal brought on 13 January 2006 by Les Éditions Albert René SARL against the judgment of the Court of First Instance (Third Chamber) delivered on 27 October 2005 in Case T-336/03: Les Éditions Albert Réné SARL v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-16/06 P)

(2006/C 143/38)

Language of the case: English

Parties

Appellant: Les Éditions Albert René SARL (represented by: J. Pagenberg, Rechtsanwalt)

Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Orange A/S

Form of order sought

The applicant claims that the Court should:

| — | annul the Judgment of the Court of First Instance of 27 October 2005 in Case T-336/03; |
| --- | --- |

—

annul the Judgment of the Court of First Instance of 27 October 2005 in Case T-336/03;

| — | annul the decision of the Board of Appeal of OHIM of 14 July 2003 in Case R 559/2002-4; |
| --- | --- |

—

annul the decision of the Board of Appeal of OHIM of 14 July 2003 in Case R 559/2002-4;

| — | reject the application for registration of MOBILIX Nr. 671396 for all the goods and services for which it has bee applied; |
| --- | --- |

—

reject the application for registration of MOBILIX Nr. 671396 for all the goods and services for which it has bee applied;

| — | order the OHIM to pay the costs in relation to the proceedings before the Court of First Instance and before the Court of Justice. |
| --- | --- |

—

order the OHIM to pay the costs in relation to the proceedings before the Court of First Instance and before the Court of Justice.

Pleas in law and main arguments

The Appellant claims that the Judgment of the Court of First Instance violates Article 63 CTMR and general principles of Community administrative and procedural law in that it concluded, contrary to the contested Board decision, that the conflicting marks, OBELIX and MOBILIX, are not similar, thereby taking a decision to the detriment of the Appellant on an issue that had not been properly raised, and thereby exceeding the competence of the Court of First Instance when reviewing decisions of OHIM Boards of Appeal in a case like the present one.

The Appellant further claims that the Court of First Instance, even if that Court was entitled to decide the issue of similarity of the conflicting marks to the detriment of the Appellant, violated Article 8(1)(b) CTMR in that it applied erroneous legal criteria in determining that the conflicting marks, OBELIX and MOBILIX, are not similar, as well as in determining that some of the conflicting goods and services are similar, while others are not.

The Appellant further claims that the Court of First Instance violated Article 74 CTMR in refusing to accept that the OBELIX mark was well-known and highly distinctive.

The Appellant further claims that the Court of First Instance violated Article 63 CTMR and its own Rules of Procedure in that it declared inadmissible the Appellants claim before that Court to annul the contested Board decision on the grounds that it had not applied Article 8(5) CTMR to the case at hand.

The Appellant further claims that the Court of First Instance violated articles 44 and 48 of its own Rules of Procedure in that it declared inadmissible the claim, presented in the alternative at the hearing, that the Court remand the case to the Board in order to allow the Appellant to establish the reputation of the mark OBELIX.

The Appellant finally claims that the Court of First Instance violated Article 63 CTMR and its own Rules of Procedure, in particular Article 135(4) thereof, in that it declared inadmissible certain documents introduced before the Court of First Instance.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/22 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/22

---

Reference for a preliminary ruling from the Østre Landsret lodged on 16 March 2006 — Olicom A/S v Skatteministeriet

(Case C-142/06)

(2006/C 143/39)

Language of the case: Danish

Referring court

Østre Landsret (Eastern Regional Court); (Denmark)

Parties to the main proceedings

Applicant: Olicom A/S

Defendant: Skatteministeriet (Danish Taxation Ministry)

Questions referred

| 1. | Is Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation No 3009/95, to be interpreted as meaning that combined network/modem cards such as those at issue in the main proceedings are to be subject, after 1 January 1996, to customs duty as data-processing machines under heading 8471 or as telecommunication apparatus under heading 8517?
  In that connection the Court of Justice of the European Communities is asked to rule on whether the concept of ‘specific function’ within the meaning of Note 5(E) to Chapter 84 of the Combined Nomenclature, as amended by Regulation No 3009/95, is to be interpreted as meaning that classification is to be under a heading other than 8471 when a WAN function is present, or whether there is to be a classification under a heading other than 8471 only if the WAN function can operate independently of an automatic data-processing machine. |
| --- | --- |

1.

Is Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation No 3009/95, to be interpreted as meaning that combined network/modem cards such as those at issue in the main proceedings are to be subject, after 1 January 1996, to customs duty as data-processing machines under heading 8471 or as telecommunication apparatus under heading 8517?

In that connection the Court of Justice of the European Communities is asked to rule on whether the concept of ‘specific function’ within the meaning of Note 5(E) to Chapter 84 of the Combined Nomenclature, as amended by Regulation No 3009/95, is to be interpreted as meaning that classification is to be under a heading other than 8471 when a WAN function is present, or whether there is to be a classification under a heading other than 8471 only if the WAN function can operate independently of an automatic data-processing machine.

| 2. | If the Court of Justice of the European Communities should find that the WAN function in the combined network/modem card is a specific function, the Court is asked to rule on whether it is relevant for the customs classification that the product's principal function can be deemed to be the LAN function. |
| --- | --- |

2.

If the Court of Justice of the European Communities should find that the WAN function in the combined network/modem card is a specific function, the Court is asked to rule on whether it is relevant for the customs classification that the product's principal function can be deemed to be the LAN function.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/22 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/22

---

Reference for a preliminary ruling from the Commissione tributaria di secondo grado di Trento lodged on 17 March 2006 — Fendt Italiana Srl v Agenzia Dogane Ufficio Dogane di Trento

(Case C-145/06)

(2006/C 143/40)

Language of the case: Italian

Referring court

Commissione tributaria di secondo grado di Trento

Parties to the main proceedings

Applicant: Fendt Italiana Srl

Defendant: Agenzia Dogane Ufficio Dogane di Trento

Question referred

Are the taxation arrangements in Article 62 of Legislative Decree No 504/95 compatible with Directive 2003/96/EC (1) which restructured the Community framework for the taxation of energy products where those products are used for purposes other than as motor fuel or heating fuel?

---

(1)  OJ 2003 L 283, p. 51.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/23 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/23

---

Reference for a preliminary ruling from the Commissione tributaria di secondo grado di Trento lodged on 17 March 2006 — Fendt Italiana Srl v Agenzia Dogane Ufficio Dogane di Trento

(Case C-146/06)

(2006/C 143/41)

Language of the case: Italian

Referring court

Commissione tributaria di secondo grado di Trento

Parties to the main proceedings

Applicant: Fendt Italiana Srl

Defendant: Agenzia Dogane Ufficio Dogane di Trento

Question referred

Are the taxation arrangements in Article 62 of Legislative Decree No 504/95 compatible with Directive 2003/96/EC (1) which restructured the Community framework for the taxation of energy products where those products are used for purposes other than as motor fuel or heating fuel?

---

(1)  OJ 2003 L 283, p. 51.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/23 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/23

---

Reference for a preliminary ruling from the Consiglio di Stato, Quinta Sezione lodged on 20 March 2006 — SECAP SpA v Comune di Torino

(Case C-147/06)

(2006/C 143/42)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: SECAP SpA

Defendant: Comune di Torino and Others

Question(s) referred

| 1. | Does the rule laid down in Article 30(4) of Directive 93/37/EEC (1) or the similar rule contained in Art. 55(1) and (2) of Directive 2004/18/EC (2) (in cases where that is the relevant provision), that, where tenders appear to be abnormally low in relation to the works, the contracting authority shall, before it may reject those tenders, request, in writing, details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements taking account of the explanations received, constitute a fundamental principle of Community law? |
| --- | --- |

1.

Does the rule laid down in Article 30(4) of Directive 93/37/EEC (1) or the similar rule contained in Art. 55(1) and (2) of Directive 2004/18/EC (2) (in cases where that is the relevant provision), that, where tenders appear to be abnormally low in relation to the works, the contracting authority shall, before it may reject those tenders, request, in writing, details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements taking account of the explanations received, constitute a fundamental principle of Community law?

| 2. | If the answer to the preceding question is in the negative, is the rule established by Art. 30(4) of Directive 93/37/EEC or the similar rule contained in Art. 55(1) and (2) of Directive 2004/18/EC (in cases where that is the relevant provision), according to which, if tenders appear to be abnormally low in relation to the works, the contracting authority shall, before it may reject those tenders, request, in writing, details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements taking account of the explanations received, while not presenting the characteristics of a fundamental principle of Community law, nevertheless an implied consequence of or a principle deriving from the principle of competition, considered in conjunction with the principles of administrative transparency and non-discrimination on grounds of nationality and is it therefore, as such, directly binding, taking precedence over possibly incompatible national provisions adopted by the Member States to regulate public works contracts to which Community law is not directly applicable? |
| --- | --- |

2.

If the answer to the preceding question is in the negative, is the rule established by Art. 30(4) of Directive 93/37/EEC or the similar rule contained in Art. 55(1) and (2) of Directive 2004/18/EC (in cases where that is the relevant provision), according to which, if tenders appear to be abnormally low in relation to the works, the contracting authority shall, before it may reject those tenders, request, in writing, details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements taking account of the explanations received, while not presenting the characteristics of a fundamental principle of Community law, nevertheless an implied consequence of or a principle deriving from the principle of competition, considered in conjunction with the principles of administrative transparency and non-discrimination on grounds of nationality and is it therefore, as such, directly binding, taking precedence over possibly incompatible national provisions adopted by the Member States to regulate public works contracts to which Community law is not directly applicable?

---

(1)  OJ L 199, p. 54.

(2)  OJ L 134, p. 114.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/24 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/24

---

Reference for a preliminary ruling from the Tribunal Supremo lodged on 27 March 2006 — International Mail Spain SL v Administración del Estado — Correos

(Case C-162/06)

(2006/C 143/43)

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: International Mail Spain SL

Defendant: Administración del Estado — Correos

Question referred

‘Does Article 7(2) [prior to its amendment by Directive 2002/39/EC] of Directive 97/67/EC (1) of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, which authorises Member States to include cross-border mail in the reserved postal services, allow them to establish that reservation only insofar as they are able to prove that, without it, the economic equilibrium of the universal service provider is at risk, or, instead, does it also allow them to retain it for other reasons, among them reasons of expediency, relating to the overall situation in the postal sector, including the degree of liberalisation in that sector at the time the reservation is decided?’

---

(1)  OJ L 15, 21.01.1998, p. 14.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/24 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/24

---

Reference for a preliminary ruling from the Wojewódzki Sąd Administracyny w Łodzi (Regional Administrative Court, Łódź) lodged on 29 March 2006 — Ceramika Paradyż sp.z oo v Dyrektor Izby Skarbowej w Łodzi

(Case C-168/06)

(2006/C 143/44)

Language of the case: Polish

Referring court

Wojewódzki Sąd Administracyny w Łodzi

Parties to the main proceedings

Applicant: Ceramika Paradyż sp.z oo

Defendant: Dyrektor Izby Skarbowej w Łodzi

Questions referred

| 1. | Does the second paragraph of Article 2 of First Council Directive 67/227/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes (1), in conjunction with Articles 2, 10(1)(a) and 10(2) 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 (2), rule out the possibility of Member States imposing an obligation on a taxable person for VAT purposes to pay an additional tax liability equivalent to 30 % of the amount of the understatement of tax liability or 30 % of the amount of the overstatement by the taxable person in respect of the tax difference to be repaid or the input tax to be repaid or of the overstatement of the excess of the input tax over that due, to be carried over to the following accounting period, in the event that it is established that the taxable person for VAT purposes:






  (a) | indicated in the tax declaration submitted an amount of tax liability which is less than the amount due, or |
| --- | --- | --- |

1.

Does the second paragraph of Article 2 of First Council Directive 67/227/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes (1), in conjunction with Articles 2, 10(1)(a) and 10(2) 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 (2), rule out the possibility of Member States imposing an obligation on a taxable person for VAT purposes to pay an additional tax liability equivalent to 30 % of the amount of the understatement of tax liability or 30 % of the amount of the overstatement by the taxable person in respect of the tax difference to be repaid or the input tax to be repaid or of the overstatement of the excess of the input tax over that due, to be carried over to the following accounting period, in the event that it is established that the taxable person for VAT purposes:

(a)

indicated in the tax declaration submitted an amount of tax liability which is less than the amount due, or

| (b) | indicated in the tax declaration an amount of the tax difference to be repaid or the input tax to be repaid which is greater than the amount due, or |
| --- | --- |

(b)

indicated in the tax declaration an amount of the tax difference to be repaid or the input tax to be repaid which is greater than the amount due, or

| (c) | indicated in the tax declaration a difference between the amount of input tax and the amount of tax due, to be carried over to the following month, or |
| --- | --- |

(c)

indicated in the tax declaration a difference between the amount of input tax and the amount of tax due, to be carried over to the following month, or

| (d) | included in the tax declaration and received an amount of tax difference to be repaid or an amount of input tax to be repaid and should have indicated the amount of tax liability to be paid to the tax office, or |
| --- | --- |

(d)

included in the tax declaration and received an amount of tax difference to be repaid or an amount of input tax to be repaid and should have indicated the amount of tax liability to be paid to the tax office, or

| (e) | failed to submit a tax declaration or to pay the amount of the tax liability? |
| --- | --- |

(e)

failed to submit a tax declaration or to pay the amount of the tax liability?

| 2. | Can ‘special measures’ within the terms of Article 27(1) of the Sixth Council Directive consist, having regard to their character and purpose, in the possibility of imposing on a taxable person for VAT purposes an additional tax liability fixed by a decision of the tax authority where it is objectively established that the taxable person has declared an understated amount of tax liability or an overstated amount of the tax difference to be repaid or an overstated amount of input tax to be repaid? |
| --- | --- |

2.

Can ‘special measures’ within the terms of Article 27(1) of the Sixth Council Directive consist, having regard to their character and purpose, in the possibility of imposing on a taxable person for VAT purposes an additional tax liability fixed by a decision of the tax authority where it is objectively established that the taxable person has declared an understated amount of tax liability or an overstated amount of the tax difference to be repaid or an overstated amount of input tax to be repaid?

---

(1)  OJ 71, 14.4.1967, p. 1301.

(2)  OJ L 145, 13.6.1977, p. 1.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/25 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/25

---

Reference for a preliminary ruling by the Tribunale di Napoli lodged on 30 March 2006 — Giuseppina Montoro and Michelangelo Liguori v Beth Israel Deaconess Medical Center

(Case C-170/06)

(2006/C 143/45)

Language of the case: Italian

Referring court

Tribunale di Napoli

Parties to the main proceedings

Applicants: Giuseppina Montoro and Michelangelo Liguori

Defendant: Beth Israel Deaconess Medical Center

Question referred

Interpretation of Article 5(3) of the Brussels Convention of 1968 requested in order to establish whether or not, leaving aside the hypothesis of multiple instances of damage, the test of the courts for the place where the harmful event occurred can serve to found jurisdiction also for the courts of the place where the person injured became aware of the existence of damage attributable to an act that took place in another State.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/25 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/25

---

Reference for a preliminary ruling from the Commissione Tributaria Regionale di Genova lodged on 3 April 2006 — Agrover S.r.l. v Agenzia Dogane Circoscrizione Doganale di Genova

(Case C-173/06)

(2006/C 143/46)

Language of the case: Italian

Referring court

Commissione Tributaria Regionale di Genova

Parties to the main proceedings

Applicant: Agrover S.r.l.

Defendant: Agenzia Dogane Circoscrizione Doganale di Genova

Questions referred

| 1. | Can Article 216 of the Community Customs Code (Regulation (EEC) No 2913/92 of 12 October 1992) apply where a Community product (rice) previously exported under the inward processing procedure with an EUR1 certificate to a non-member country (with which an agreement on preferential tariff treatment is in force) gives rise to the application of customs duties at the time of the subsequent compensating reimportation of the same (or equivalent) goods from a so-called ‘non-agreement’ non-member country? |
| --- | --- |

1.

Can Article 216 of the Community Customs Code (Regulation (EEC) No 2913/92 of 12 October 1992) apply where a Community product (rice) previously exported under the inward processing procedure with an EUR1 certificate to a non-member country (with which an agreement on preferential tariff treatment is in force) gives rise to the application of customs duties at the time of the subsequent compensating reimportation of the same (or equivalent) goods from a so-called ‘non-agreement’ non-member country?

| 2. | If duties under Article 216 of the Community Customs Code are not levied at the time of the compensating importation, may the customs authorities seek to recover them a posteriori, or does the exemption referred to in Article 220 of the Community Customs Code apply? |
| --- | --- |

2.

If duties under Article 216 of the Community Customs Code are not levied at the time of the compensating importation, may the customs authorities seek to recover them a posteriori, or does the exemption referred to in Article 220 of the Community Customs Code apply?

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/25 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/25

---

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

(Case C-177/06)

(2006/C 143/47)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: F. Castillo de la Torre, Agent, acting as Agent(s))

Defendant: Kingdom of Spain

Form of order sought

| — | a declaration that, by having failed to adopt within the period prescribed all the measures necessary to comply with Articles 2 and 3 of the Commission's decisions of 20 December 2001 on a State aid scheme implemented by Spain in 1993 for certain newly established firms in Álava, Vizcaya and Guipúzcoa, documents Nos C(2001) 4448 fin, (1) C(2001) 4475 fin (2) and C(2001) 4478 fin, (3) or, in any case, by having failed to communicate such provisions to the Commission, the Kingdom of Spain has failed to fulfil its obligations under those decisions and under the EC Treaty; |
| --- | --- |

—

a declaration that, by having failed to adopt within the period prescribed all the measures necessary to comply with Articles 2 and 3 of the Commission's decisions of 20 December 2001 on a State aid scheme implemented by Spain in 1993 for certain newly established firms in Álava, Vizcaya and Guipúzcoa, documents Nos C(2001) 4448 fin, (1) C(2001) 4475 fin (2) and C(2001) 4478 fin, (3) or, in any case, by having failed to communicate such provisions to the Commission, the Kingdom of Spain has failed to fulfil its obligations under those decisions and under the EC Treaty;

| — | an order that the Kingdom of Spain should pay the costs. |
| --- | --- |

—

an order that the Kingdom of Spain should pay the costs.

Pleas in law and main arguments

The period fixed in Article 4 of the decisions for the Kingdom of Spain to communicate the implementation measures expired on 1 March 2002 without the Commission's having received any communication in that regard.

---

(1)  OJ L 77 of 24 March 2003, p. 1

(2)  OJ L 40 of 14 February 2003, p. 11

(3)  OJ L 17 of 22 January 2003, p. 20

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/26 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/26

---

Action brought on 5 April 2006 — Commission of the European Communities v Republic of Estonia

(Case C-178/06)

(2006/C 143/48)

Language of the case: Estonian

Parties

Applicant: Commission of the European Communities (represented by K. Simonsson and E. Randvere, acting as Agents)

Defendant: Republic of Estonia

Form of order sought

| — | declare that, by failing to notify the laws and regulations necessary for transposing into national law Directive 2002/39/EC of the European Parliament and of the Council of 10 June 2002 amending Directive 97/67/EC with regard to the further opening to competition of Community postal services, (1) the Republic of Estonia has failed to fulfil its obligations under the directive; |
| --- | --- |

—

declare that, by failing to notify the laws and regulations necessary for transposing into national law Directive 2002/39/EC of the European Parliament and of the Council of 10 June 2002 amending Directive 97/67/EC with regard to the further opening to competition of Community postal services, (1) the Republic of Estonia has failed to fulfil its obligations under the directive;

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

—

order the Republic of Estonia to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing the directive into national law expired on 31 December 2002.

---

(1)  OJ L 176 of 5.7.2002, p. 21.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/26 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/26

---

Action brought on 5 April 2006 — Commission of the European Communities v Italian Republic

(Case C-179/06)

(2006/C 143/49)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: D. Recchia, Agent)

Defendant: Italian Republic

Form of order sought

| — | Declare that, as the municipality of Altamura and the region of Apulia approved, with effect from December 2000, an alteration to a development plan comprising a series of industrial construction operations liable to have a significant impact on SPA and SCIp IT 9120007 Murgia Alta without having first carried out an impact assessment procedure at least in respect of the impact on the SPA, the Italian Republic has failed to fulfil its obligations under Article 6(3) and 7 of Directive 92/43/EEC; (1) |
| --- | --- |

—

Declare that, as the municipality of Altamura and the region of Apulia approved, with effect from December 2000, an alteration to a development plan comprising a series of industrial construction operations liable to have a significant impact on SPA and SCIp IT 9120007 Murgia Alta without having first carried out an impact assessment procedure at least in respect of the impact on the SPA, the Italian Republic has failed to fulfil its obligations under Article 6(3) and 7 of Directive 92/43/EEC; (1)

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

—

Order the Italian Republic to pay the costs.

Pleas in law and main arguments

The alteration to the development plan concerning the construction operations falling within SPA and SCIp IT 912007 Murgia Alta was not the subject of an appropriate assessment of the impact on the area, as provided for in Article 6(3) of Directive 92/43/EEC.

The resolution of the municipality of Altamura and the Regional Executive, which approved the said alteration to the development plan, is in contravention of the abovementioned Community provisions, in that, although the said alteration was liable to have a significant impact on SPA and SCIp IT 9120007 Murgia Alta, an impact assessment procedure was not carried out.

The reason stated for the absence of an assessment clearly does not comply with Community law. The reason given is that the size of the construction operations fell below the thresholds set by the domestic law implementing Directives 85/337/EEC, as amended, (2) and 92/43/EEC. However, under Article 6(3) of Directive 92/43/EEC ‘any plan or project’ likely to have a significant impact on the site must be subject to an impact assessment, and this obligation is not limited to a list of projects the size of which exceeds the threshold set.

---

(1)  OJ L 206, p. 7.

(2)  OJ L 175, p. 40.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/27 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/27

---

Reference for a preliminary ruling from the Cour administrative lodged on 10 April 2006 — État du grand-duché de Luxembourg v Hans Ulrich Lakebrink and Katrin Peters-Lakebrink

(Case C-182/06)

(2006/C 143/50)

Language of the case: French

Referring court

Cour administrative (Luxembourg)

Parties to the main proceedings

Applicant: État du grand-duché de Luxembourg

Defendants: Hans Ulrich Lakebrink and Katrin Peters-Lakebrink

Question referred

Is Article 39 EC to be interpreted as meaning that it precludes national rules, such as those introduced in the Grand-Duchy of Luxembourg by Article 157ter of the Law on Income Tax, under which a Community national not resident in Luxembourg who receives income of Luxembourg origin from employment, which constitutes the major part of his taxable resources, cannot rely on his negative rental income relating to property situated in another Member State, in this case Germany, which he does not himself occupy, for the purposes of the determination of the tax rate applicable to his Luxembourg income?

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/27 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/27

---

Reference for a preliminary ruling from the Finanzgericht München lodged on 13 April 2006 — RUMA GmbH v Oberfinanzdirektion Nürnberg

(Case C-183/06)

(2006/C 143/51)

Language of the case: German

Referring court

Finanzgericht München

Parties to the main proceedings

Applicant: RUMA GmbH

Defendant: Oberfinanzdirektion Nürnberg

Question referred

Is the Combined Nomenclature (CN), in the version of Annex I to Commission Regulation (EC) No 1789/2003 (1) of 11 September 2003 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, to be interpreted as meaning that keypads which have non-conductive contact pins on the underside are to be classified under heading 8538?

---

(1)  OJ 2003 L 281, p. 1.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/28 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/28

---

Action brought on 4 May 2006 — Commission of the European Communities v Czech Republic

(Case C-203/06)

(2006/C 143/52)

Language of the case: Czech

Parties

Applicant: Commission of the European Communities (represented by K. Walkerová and H. Støvlbæk, acting as Agents)

Defendant: Czech Republic

Form of order sought

| — | declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with the Council Directive of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications, (1) or in any event by failing to notify them to the Commission, the Czech Republic has failed to fulfil its obligations under Article 44 of that directive; |
| --- | --- |

—

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with the Council Directive of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications, (1) or in any event by failing to notify them to the Commission, the Czech Republic has failed to fulfil its obligations under Article 44 of that directive;

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

—

order the Czech Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing the directive into national law expired on 30 April 2004.

---

(1)  Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications, OJ 1993 L 165, p. 1.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/28 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/28

---

Action brought on 4 May 2006 — Commission of the European Communities v Czech Republic

(Case C-204/06)

(2006/C 143/53)

Language of the case: Czech

Parties

Applicant: Commission of the European Communities (represented by K. Walkerová and H. Støvlbæk, acting as Agents)

Defendant: Czech Republic

Form of order sought

| — | declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Council Directive 78/686/EEC of 25 July 1978 concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services, (1) or in any event by failing to notify them to the Commission, the Czech Republic has failed to fulfil its obligations under Article 24 of that directive; |
| --- | --- |

—

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Council Directive 78/686/EEC of 25 July 1978 concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services, (1) or in any event by failing to notify them to the Commission, the Czech Republic has failed to fulfil its obligations under Article 24 of that directive;

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

—

order the Czech Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing the directive into national law expired on 30 April 2004.

---

(1)  OJ 1978 L 233, p. 1.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/28 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/28

---

Order of the President of the Court of 1 December 2005 — Commission of the European Communities v Ireland

(Case C-294/03) (1)

(2006/C 143/54)

Language of the case: English

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

---

(1)  OJ C 213, 06.09.2003.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/29 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/29

---

Order of the President of the Court of 14 November 2005 — Commission of the European Communities v Hellenic Republic

(Case C-526/03) (1)

(2006/C 143/55)

Language of the case: Greek

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

---

(1)  OJ C 71, 20.03.2004.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/29 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/29

---

Order of the President of the Court (Fourth Chamber) of 15 December 2005 (reference for a preliminary ruling from the Retten i Hørsholm) — Anklagemyndighedden v Steffen Ryborg

(Case C-279/04) (1)

(2006/C 143/56)

Language of the case: Danish

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

---

(1)  OJ C 228, 11.19.2004.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/29 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/29

---

Order of the President of the Court (First Chamber) of 14 December 2005 (reference for a preliminary ruling from the Verwaltungsgericht Köln) — mdm Versandservice GmbH v Bundesrepublik Deutschland

(Case C-352/04) (1)

(2006/C 143/57)

Language of the case: German

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

---

(1)  OJ C 262, 23.10.2004.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/29 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/29

---

Order of the President of the Court of 7 September 2005 — Commission of the European Communities v Italian Republic

(Case C-87/05) (1)

(2006/C 143/58)

Language of the case: Italian

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

---

(1)  OJ C 93, 16.04.2005.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/29 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/29

---

Order of the President of the Court of 5 December 2005 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

(Case C-126/05) (1)

(2006/C 143/59)

Language of the case: English

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

---

(1)  OJ C 132, 20.05.2005.

---

COURT OF FIRST INSTANCE

| 17.6.2006 | EN | Official Journal of the European Union | C 143/30 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/30

---

Judgment of the Court of First Instance of 11 April 2006 — Angeletti v Commission of the European Communities

(Case T-394/03) (1)

(Community officials - Social security - Occupational illness - Exposure to asbestos - Refusal to recognise the occupational origin of the illness - Obligation to render a decision within a reasonable time - Non-pecuniary damage)

(2006/C 143/60)

Language of the case: French

Parties

Applicant: Flavia Angeletti (Nice (France)) (represented initially by K. Devolvé and J. Iturriagagoitia Bassas, lawyers, and subsequently by J. Iturriagagoitia Bassas)

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

Re:

Application for annulment of the decision of the Commission of 7 October 2003 refusing to recognise the occupational origin of the applicant's medical complaint following her alleged exposure to asbestos, application for annulment of the opinion of the medical committee pertaining thereto, application for annulment of the decision of the Commission charging to the applicant part of the fees and expenses charged by members of that committee and applications for compensation to have the Commission pay for medical fees and expenses.

Operative part of the judgment

The Court:

| 1. | Orders the Commission to pay EUR 12 000 in compensation to the applicant; |
| --- | --- |

1.

Orders the Commission to pay EUR 12 000 in compensation to the applicant;

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

2.

Dismisses the remainder of the application;

| 3. | Orders the Commission to pay, in addition to its own costs, half of the costs incurred by the applicant, including those relating to the interim proceedings. |
| --- | --- |

3.

Orders the Commission to pay, in addition to its own costs, half of the costs incurred by the applicant, including those relating to the interim proceedings.

---

(1)  OJ C 47 of 21.2.2004.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/30 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/30

---

Order of the Court of First Instance of 3 April 2006 — The International Institute for the Urban Environment v Commission

(Case T-74/05) (1)

(Research and technological development programme entitled ‘Promotion of innovation and encouragement of SME participation’ - Community financing - Articles 230 EC and 238 EC - Arbitration clause - Action for annulment - Admissibility)

(2006/C 143/61)

Language of the case: English

Parties

Applicant: The International Institute for the Urban Environment (Delft, Netherlands) (represented by: P. ter Burg, lawyer)

Defendant: Commission of the European Communities (represented by: L. Ström van Lier, Agent, assisted by J. Stuyck, lawyer)

Re:

Action brought under Articles 230 EC and 238 EC relating to the remuneration claimed by the applicant in connection with the performance of the two contracts IPS-1999-00016 and IPS-1999-00022, concluded in the framework of the research and technological development programme entitled ‘Promotion of innovation and encouragement of SME participation’

Operative part of the order

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

1.

The application is dismissed as inadmissible.

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

2.

The applicant shall pay the costs.

---

(1)  OJ C 106 of 30.04.2005.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/31 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/31

---

Order of the President of the Court of First Instance of 4 April 2006 — Vischim v Commission

(Case T-420/05 R)

(Application for interim measures - Application for suspension of operation - Directive 91/414/EEC - Urgency - None)

(2006/C 143/62)

Language of the case: English

Parties

Applicant: Vischim Srl (Cesano Maderno, Italy) (represented by: C. Mereu and K. Van Maldegem, lawyers)

Defendant: Commission of the European Communities (represented by: B. Doherty, Agent)

Re:

Application (i) for suspension of Commission Directive 2005/53/EC of 16 September 2005 amending Council Directive 91/414/EEC to include chlorothalonil, chlorotuloron, cypermethrin, daminozide and thiophanate-methyl as active substances (OJ 2005 L 241, p. 51) and (ii) for the adoption of certain other interim measures

Operative part of the order

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

1.

The application for interim measures is dismissed.

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

2.

Costs are reserved.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/31 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/31

---

Action brought on 6 April 2006 — Demp Holding v OHIM — BAU HOW (BAUHOW)

(Case T-106/06)

(2006/C 143/63)

Language in which the application was lodged: German

Parties

Applicant: Demp Holding B.V. (Maastricht, Netherlands) (represented by: R.-D. Härer, C. Schultze, J. Ossing and C. Weber, Rechtsanwälte)

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

Other party to the proceedings before the Board of Appeal of OHIM: BAU HOW GmbH (Hattersheim/Okriftel, Germany)

Form of order sought

| — | Annul the decision of the Opposition Division of 28 November 2003 and the decision of the Fourth Board of Appeal of 31 January 2006 in Case R 92/2004-4; |
| --- | --- |

—

Annul the decision of the Opposition Division of 28 November 2003 and the decision of the Fourth Board of Appeal of 31 January 2006 in Case R 92/2004-4;

| — | allow the opposition and reject the application for the trade mark; |
| --- | --- |

—

allow the opposition and reject the application for the trade mark;

| — | order the OHIM to pay all the costs i.e. the costs of the opposition proceedings, the proceedings before the Board of Appeal and the present proceedings. |
| --- | --- |

—

order the OHIM to pay all the costs i.e. the costs of the opposition proceedings, the proceedings before the Board of Appeal and the present proceedings.

Pleas in law and main arguments

Applicant for a Community trade mark: BAU HOW GmbH.

Community trade mark concerned: The figurative mark ‘BAUHOW’ for goods and services in Classes 7, 8, 11, 19, 20, 36, 37 and 40 (Application no. 1 740 133).

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

Mark or sign cited in opposition: The figurative mark ‘BAUHAUS’ as Benelux mark no. 570 351 and as international mark no. 646 757 for goods and services in Classes 1, 2, 6-9, 11, 12, 16, 17, 19-21, 25, 27, 31 and 40 and the Irish mark application no. 2000/03158.

Decision of the Opposition Division: Rejection of the opposition.

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

Pleas in law: Breach of the right to a fair hearing and breach of Article 8(1)(b) of Regulation (EC) No 40/94 (1), as there is a likelihood of confusion between the opposing marks.

---

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

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/32 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/32

---

Action brought on 12 April 2006 — Wesergold Getränkeindustrie v OHIM — Lidl Stiftung (VITAL& FIT)

(Case T-111/06)

(2006/C 143/64)

Language in which the application was lodged: German

Parties

Applicant: Wesergold Getränkeindustrie GmbH & Co. KG (Rinteln, Germany) (represented by: P. Godenbaum, T. Melchert and I. Rohr, Rechtsanwälte)

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

Other party to the proceedings before the Board of Appeal of OHIM: Lidl Stiftung & Co. KG (Neckarsulm, Germany)

Form of order sought

| — | Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 16 February 2006 (R 3/2005-2); |
| --- | --- |

—

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 16 February 2006 (R 3/2005-2);

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

—

order the OHIM to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: The figurative mark ‘VITAL& FIT’ for goods in Class 32 (Application no. 1 457 951).

Proprietor of the mark or sign cited in the opposition proceedings: Lidl Stiftung & Co. KG.

Mark or sign cited in opposition: The German word mark ‘VITAFIT’ no. 1 050 163 for goods in Class 32.

Decision of the Opposition Division: Grant of the opposition

Decision of the Board of Appeal: Rejection of the appeal

Pleas in law: Misinterpretation of the subject of the appeal by the Board of Appeal (Article 62(1) of Regulation (EC) No 40/94 (1)); breach of the right to a fair hearing and the obligation to state reasons (Article 73 of Regulation No 40/94); breach of the obligation to take into account the facts and evidence which were not submitted late (Article 73 of Regulation No 40/94); breach of Article 8(1)(b) of Regulation No 40/94, as there is no likelihood of confusion between the opposing trade marks.

---

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

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/32 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/32

---

Action brought on 7 April 2006 — Fiskeri og Havbruksnæringens Landsforening and Others v Council

(Case T-115/06)

(2006/C 143/65)

Language of the case: English

Parties

Applicants: Fiskeri og Havbruksnæringens Landsforening (Oslo, Norway), Norske Sjømatbedrifters Landsforening (Trondheim, Norway), Salmar Farming AS (Frøya, Norway), Hydroteck AS (Kristiansund, Norway), Hallvard Lerøy AS (Bergen, Norway), Lerøy Midnor AS (Hestvika, Norway) (represented by: B. Servais and T.S. Paulsen, lawyers)

Defendant: Council of the European Union

Form of order sought

| — | Annul Council Regulation (EC) No 85/2006 imposing definitive anti-dumping duties for imports of salmon originating in Norway; and |
| --- | --- |

—

Annul Council Regulation (EC) No 85/2006 imposing definitive anti-dumping duties for imports of salmon originating in Norway; and

| — | order the Council to bear the costs of these proceedings. |
| --- | --- |

—

order the Council to bear the costs of these proceedings.

Pleas in law and main arguments

The applicants, who are Norwegian salmon producers, farmers and exporters or representing such undertakings, seek the annulment of Council Regulation (EC) No 85/2006 of 17 January 2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of farmed salmon originating in Norway (1) (‘contested regulation’) as they find that the regulation violates several articles of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (2) (‘basic regulation’).

The Commission services had in the course of the procedure leading to the contested regulation agreed to change the form of measures from duties to minimum import prices. This was confirmed by the contested regulation.

In support of their application, the applicants submit that the sample of Norwegian producers/exporters, which is restricted to exporting producers and does not comprise non-exporting farmers and non-producing exporters, wasn't representative of the structure of the Norwegian salmon industry and was inconsistent with previous decisions on samples of the Norwegian salmon market.

Furthermore, the applicants allege that the defendant failed to apply the lesser duty rule contained in Article 9(4) of the basic regulation. According to the applicants, the weighted average dumping margin was less than the weighted average injury margin, and the minimum import price and the fixed duty should therefore have been established on the basis of the weighted average dumping margin and not on the basis of the weighted average injury margin. As for the calculation of the non-dumped minimum import price, the applicants further allege that the use, for the conversion from NOK into EUR, of a three-year average exchange rate instead of the average exchange rate for the period of investigation artificially increased the non-dumped minimum import price.

Moreover, the applicants claim that the minimum import price for salmon fillets wasn't based on representative data and that it was determined in breach of Articles 3(5) and 20 of the basic regulation and in violation of the principles of sound administration, legitimate expectations and the rights of defence.

Finally, the applicants submit that the assessment of injury and the causes hereto is flawed. Firstly, in the injury analysis the defendant relied on the total of the imports as ‘dumped imports’ notwithstanding the fact that one company was found not to be dumping. Secondly, the apparent price decrease of the average sales prices in the Community industry was caused by the conversion of GBP into EUR, all sampled Community producers being based in the UK, and not by the imports. Thirdly, the defendant failed to examine properly the impact that rising costs of production in the Community may have had on the situation of the Community industry.

---

(1)  OJ 2006 L 15, p. 1.

(2)  OJ 1996 L 56, p. 1.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/33 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/33

---

Action brought on 13 April 2006 — DeTeMedien v OHIM (suchen.de)

(Case T-117/06)

(2006/C 143/66)

Language of the case: German

Parties

Applicant: DeTeMedien, Deutsche Telekom Medien GmbH (Frankfurt, Germany) (represented by: J. Fesenmair and I. Gehring, lawyers)

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 30 January 2006 in appeal proceedings R 287/2005-1, and |
| --- | --- |

—

annul the decision of the First Board of Appeal of 30 January 2006 in appeal proceedings R 287/2005-1, and

| — | order the Office for Harmonisation to bear the applicant's refundable costs |
| --- | --- |

—

order the Office for Harmonisation to bear the applicant's refundable costs

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘suchen.de’ for goods and services in Classes 9, 16, 35, 36, 38 and 42 (Application No 3 915 329)

Decision of the examiner: Partial rejection of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The mark applied for does have distinctive character and is not purely descriptive; thus, no absolute grounds for refusal under Article 7(1)(b) and (c) or Article 7(2) of Regulation (EC) No 40/94 (1) stand in the way of its registration.

---

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

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/34 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/34

---

Action brought on 27 April 2006 — MIP METRO v OHIM — MetroRED Telecom (MetroRED)

(Case T-124/06)

(2006/C 143/67)

Language in which the application was lodged: English

Parties

Applicant: MIP METRO Group Intellectual Property GmbH & Co KG (Düsseldorf, Germany) (represented by: R. Kaase, lawyer)

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

Other party to the proceedings before the Board of Appeal: MetroRED Telecom Group Ltd (Hamilton, Bermuda)

Form of order sought

| — | Annul the Decision of the Second Board of Appeal of 16 February 2006 as far as the appeal has been dismissed on the grounds that it does not comply with Art 8(1)(b) of Regulation No 40/94; |
| --- | --- |

—

Annul the Decision of the Second Board of Appeal of 16 February 2006 as far as the appeal has been dismissed on the grounds that it does not comply with Art 8(1)(b) of Regulation No 40/94;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: MetroRED Telecom Group Ltd.

Community trade mark concerned: The figurative mark ‘MetroRED’ for services in classes 35, 38 and 42 — application No 2 189 512

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

Mark or sign cited: The national figurative mark ‘METRO’ for goods and services in classes 1 to 36 and 38 to 42

Decision of the Opposition Division: Opposition partially rejected

Decision of the Board of Appeal: Appeal partially dismissed

Pleas in law: Violation of Article 8(1)(b) of Council Regulation No 40/94 as there is a likelihood of confusion since the mark ‘MetroRED’ is dominated by the element ‘Metro’ which is identical to the opposition mark. According to the applicant, the further element ‘RED’ lacks any distinctiveness and will thus be disregarded by the consumer.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/34 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/34

---

Action brought on 24 April 2006 — Italian Republic v Commission of the European Communities

(Case T-126/06)

(2006/C 143/68)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: Paolo Gentili, Avvocato dello Stato)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul Memorandum No 0147 (doc. No 1) of 13.02.2006 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref. Programme PEP Campania (No CCI 1999 IT 16 1 PO 007); |
| --- | --- |

—

annul Memorandum No 0147 (doc. No 1) of 13.02.2006 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref. Programme PEP Campania (No CCI 1999 IT 16 1 PO 007);

| — | annul Memorandum No 01778 (doc. No 2) of 21.02.2006) of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref. SPD Toscana Ob.2 (No CCI 2000 IT 16 2 DO 001); |
| --- | --- |

—

annul Memorandum No 01778 (doc. No 2) of 21.02.2006) of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref. SPD Toscana Ob.2 (No CCI 2000 IT 16 2 DO 001);

| — | annul Memorandum No 01780 (doc. No 3) of 21.02.2006 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref. SPD Ob. 2 ‘Lazio’ 2000-2006 (No CCI 2000 IT 16 2 DO 009); |
| --- | --- |

—

annul Memorandum No 01780 (doc. No 3) of 21.02.2006 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref. SPD Ob. 2 ‘Lazio’ 2000-2006 (No CCI 2000 IT 16 2 DO 009);

| — | annul Memorandum No 02114 (doc. No 4) of 03.03.2006 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref. Programme SPD Lombardia (No CCI 2000 IT 16 2 DO 014); |
| --- | --- |

—

annul Memorandum No 02114 (doc. No 4) of 03.03.2006 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref. Programme SPD Lombardia (No CCI 2000 IT 16 2 DO 014);

| — | annul Memorandum No 02983 (doc. No 5) of 31.03.2006 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref. Programme PEP Sardegna 2000-2006 (No CCI 1999 IT 16 1 PO 010); |
| --- | --- |

—

annul Memorandum No 02983 (doc. No 5) of 31.03.2006 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref. Programme PEP Sardegna 2000-2006 (No CCI 1999 IT 16 1 PO 010);

| — | annul all related and prior measures; |
| --- | --- |

—

annul all related and prior measures;

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

—

order the Commission of the European Communities to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are similar to those relied on in Case T-345/04 Italian Republic v Commission.

---

EUROPEAN UNION CIVIL SERVICE TRIBUNAL

| 17.6.2006 | EN | Official Journal of the European Union | C 143/36 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/36

---

Judgment of the Civil Service Tribunal (Plenary session) of 26 April 2006 — Falcione v Commission

(Case F-16/05) (1)

(Officials - Appointment - Classification in the higher career grade - Articles 5 and 31(2) of the Staff Regulations - Costs - Article 7(5) of Annex I to the Statute of the Court of Justice and Article 88 of the Rules of Procedure of the Court of First Instance)

(2006/C 143/69)

Language of the case: French

Parties

Applicant: Nicola Falcione (Brussels, Belgium) (represented by: S. Orlandi, X. Martin, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Commission of the European Communities (represented by: V. Joris and K. Hermann, acting as Agents)

Re:

Annulment of the decision of 24 March 2004 by which the Commission of the European Communities fixed the applicant's definitive grade, after recruitment, at grade A5, step 4

Operative part of the judgment

The Tribunal:

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

1.

Dismisses the application;

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

2.

Orders the parties to bear their own costs.

---

(1)  OJ C 143, 11.6.2005 (case initially registered before the Court of First Instance of the European Communities under number T-132/05 and transferred to the Civil Service Tribunal of the European Union by Order of 15.12.2005).

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/36 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/36

---

Action brought on 30 March 2006 — Grünheid v Commission

(Case F-35/06)

(2006/C 143/70)

Language of the case: French

Parties

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

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the decision of 20 July 2004, which was not notified to the applicant but of which she incidentally learnt on 23 June 2005 on the occasion of the rejection of another complaint she had brought, numbered R/162/05, and with which she became acquainted on 29 June at her request, inasmuch as it sets her definitive classification at grade A7, step 3, and annul all consecutive and/or related measures; |
| --- | --- |

—

Annul the decision of 20 July 2004, which was not notified to the applicant but of which she incidentally learnt on 23 June 2005 on the occasion of the rejection of another complaint she had brought, numbered R/162/05, and with which she became acquainted on 29 June at her request, inasmuch as it sets her definitive classification at grade A7, step 3, and annul all consecutive and/or related measures;

| — | Annul the decision of the appointing authority of 16 December 2005, notified on 10 January 2006, rejecting the applicant's complaint registered on 22 September 2005 under reference R/732/05; |
| --- | --- |

—

Annul the decision of the appointing authority of 16 December 2005, notified on 10 January 2006, rejecting the applicant's complaint registered on 22 September 2005 under reference R/732/05;

| — | Order the Commission of the European Communities to pay the costs. |
| --- | --- |

—

Order the Commission of the European Communities to pay the costs.

Pleas in law and main arguments

In support of her application, the applicant puts forward pleas similar to those she has put forward in Case F-101/05 (1), also initiated by her.

---

(1)  OJ C 10, 14.1.2004, p. 26 (the case had been brought before the Court of First Instance of the European Communities and registered under number T-388/05)

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/37 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/37

---

Action brought on 14 April 2006 — Irène Bianchi v European Training Foundation

(Case F-38/06)

(2006/C 143/71)

Language of the case: French

Parties

Applicant: Irène Bianchi (Turin, Italy) (represented by: M.-A. Lucas, lawyer)

Defendant: European Training Foundation

Forms of order sought

| — | annul the decision of the Director of the Foundation not to renew the applicant's contract of employment as a temporary agent, which was notified to her by memorandum of 24 October 2005; |
| --- | --- |

—

annul the decision of the Director of the Foundation not to renew the applicant's contract of employment as a temporary agent, which was notified to her by memorandum of 24 October 2005;

| — | order the Foundation to compensate for the pecuniary and non-pecuniary damage suffered by the applicant, together with statutory interest; |
| --- | --- |

—

order the Foundation to compensate for the pecuniary and non-pecuniary damage suffered by the applicant, together with statutory interest;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, who was engaged by the Foundation in 2000 under a contract of employment as a temporary agent concluded initially for a period of three years and subsequently renewed until 15 April 2006, contests the decision not to renew her contract of employment beyond that date.

The applicant puts forward four pleas in law in support of her action for annulment. The first plea alleges infringement of the general principle of the rights of the defence and of Article 26 of the Staff Regulations, in that the negative evaluations which the Head of the Finance Unit sent to the Director of the Foundation were not sent to the applicant or placed in her personal file.

The second plea alleges infringement of the obligation to state reasons arising from the decision of the Director of the Foundation of 26 February 1997 pertaining to the renewal of contracts and of the second paragraph of Article 25 of the Staff Regulations, in that the applicant was not informed sufficiently of the reasons for the contested decision.

The third plea alleges a number of procedural infringements established by the aforementioned decision of 26 February 1997.

The fourth plea alleges manifest errors of assessment which the Director of the Foundation made as to the necessity for the applicant's expertise with respect, in particular, to administrative assistant posts resulting from the reform, the manner in which the applicant performed her duties and the interest of the service.

In support of her action for compensation, the applicant claims that the illegalities of the contested decision constitute wrongful acts which have caused her and are still likely to cause her serious pecuniary and non-pecuniary damage.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/37 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/37

---

Action brought on 8 April 2006 — Luigi Mancuccio v Commission of the European Communities

(Case F-40/06)

(2006/C 143/72)

Language of the case: Italian

Parties

Applicant: Luigi Mancuccio (Tricase, Italy) (represented by: V. Messa, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the implied decision by which the applicant's request dated 1 March 2005 to the Appointing Authority to have sent to him a certified copy of the original of the bill of lading relating to the presumed dispatching of his personal effects from Angola to Italy; |
| --- | --- |

—

annul the implied decision by which the applicant's request dated 1 March 2005 to the Appointing Authority to have sent to him a certified copy of the original of the bill of lading relating to the presumed dispatching of his personal effects from Angola to Italy;

| — | order the defendant to pay to the applicant, by way of damages for the losses resulting from the adoption of the contested act, the amount of EUR 10 000, or an amount to be assessed by the Court; |
| --- | --- |

—

order the defendant to pay to the applicant, by way of damages for the losses resulting from the adoption of the contested act, the amount of EUR 10 000, or an amount to be assessed by the Court;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, a former Commission official who took retirement on 30 May 2005, requested from that institution the bill of lading for his personal effects and property assigned to his residence in Angola, the country to which he had been assigned as an economic advisor with the Commission's delegation.

In May 2003, the defendant was arranging for the removal from the official lodgings assigned to the applicant, who maintains that only part of his personal effects were collected for removal. By memorandum of 16 May 2005, the defendant informed the applicant that his personal effects and his automobile had been sent to Italy and asked him to contact the shipping agent to arrange for delivery.

By letter of 1 March 2005, the applicant requested, inter alia, a detailed list of what had been delivered to him, and also a copy of the bill of lading. That request was not answered, as indicated in the claim brought by the applicant on 2 September 2005.

In support of his action, the applicant states that the implied decision to reject his claim is illegitimate on grounds of absolute failure to state reasons, infringement of the law, infringement of the obligation to have due regard to the welfare of officials, the principle of transparency, the principle of sound administration, and also the principle of neminem laedere.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/38 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/38

---

Action brought on 21 April 2006 — Tuomo Talvela v Commission of the European Communities

(Case F-43/06)

(2006/C 143/73)

Language of the case: French

Parties

Applicant: Tuomo Talvela (Oslo, Norway) (represented by: E. Boigelot, lawyer)

Defendant: Commission of the European Communities

Forms of order sought

| — | annul the applicant's Career Development Review (CDR) for the period from 1 January 2004 to 31 December 2004, and also the decision of 31 August 2005 of the appeal assessor confirming and definitively approving the said CDR; |
| --- | --- |

—

annul the applicant's Career Development Review (CDR) for the period from 1 January 2004 to 31 December 2004, and also the decision of 31 August 2005 of the appeal assessor confirming and definitively approving the said CDR;

| — | annul the implicit decision to reject the applicant's request of 25 February 2005 and also any act subsequent and/or relating to that decision; |
| --- | --- |

—

annul the implicit decision to reject the applicant's request of 25 February 2005 and also any act subsequent and/or relating to that decision;

| — | annul the decision of 11 January 2006 of the Appointing Authority, received on 13 January 2006, rejecting the complaint lodged by the applicant on 23 September 2005 and seeking to have the contested decisions annulled; |
| --- | --- |

—

annul the decision of 11 January 2006 of the Appointing Authority, received on 13 January 2006, rejecting the complaint lodged by the applicant on 23 September 2005 and seeking to have the contested decisions annulled;

| — | award damages for pecuniary and non-pecuniary loss and also for loss of career prospects, evaluated on equitable principles at EUR 4 000 and subject to amendment in the course of the proceedings; |
| --- | --- |

—

award damages for pecuniary and non-pecuniary loss and also for loss of career prospects, evaluated on equitable principles at EUR 4 000 and subject to amendment in the course of the proceedings;

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

—

order the Commission of the European Communities to pay the costs.

Pleas in law and main arguments

The applicant pleads, first, infringement of the second paragraph of Article 25, Article 26 and Article 43 of the Staff Regulations, and also of the general implementing provisions relating to the application of Article 43, as adopted by the defendant on 3 March 2004, of the specific rules for staff assigned to the External Service and of the Guide to staff reports.

He also claims that the defendant infringed the general implementing provisions adopted by it on 28 April 2004 concerning the conduct of administrative investigations and disciplinary proceedings.

Next, he alleges infringement of the essential procedural requirements, disregard of the general principles of law, such as the rights of the defence, the principle of sound administration and the duty to pay due regard to the welfare of officials, the principle of equal treatment and those requiring the Appointing Authority to adopt a decision solely on legally valid grounds, that is, grounds which are relevant and not vitiated by manifest errors of assessment, fact or law.

Lastly, the applicant claims that by adopting the disputed assessment for the 2004 exercise in the circumstances described, the Appointing Authority manifestly failed to make a correct application and interpretation of the provisions of the Staff Regulations and of the abovementioned principles. Its decision is therefore based on reasons which are incorrect both in fact and in law. The applicant has therefore been placed in an administrative situation which is both discriminatory and contrary to his legitimate expectations and interests.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/39 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/39

---

Action brought on 25 April 2006 — Martin Avendano and Others v Commission

(Case F-45/06)

(2006/C 143/74)

Language of the case: French

Parties

Applicants: Javier Martin Avendano and Others (represented by: S. Rodrigues and A. Jaume, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the refusal of the appointing authority to enter the applicants on the list of officials promoted to grades A*10 and B*10 under the 2005 promotion exercise such as those decisions implicitly result from Administrative Notice No 85-2005 of 23 November 2005; |
| --- | --- |

—

Annul the refusal of the appointing authority to enter the applicants on the list of officials promoted to grades A*10 and B*10 under the 2005 promotion exercise such as those decisions implicitly result from Administrative Notice No 85-2005 of 23 November 2005;

| — | Inform the appointing authority of the consequences of annulling the contested decisions, and in particular the reclassification of the applicants' grades to grade A*10 with retroactive effect from 1 March 2005 or to grade B*10 with retroactive effect from 1 January 2005, as appropriate; |
| --- | --- |

—

Inform the appointing authority of the consequences of annulling the contested decisions, and in particular the reclassification of the applicants' grades to grade A*10 with retroactive effect from 1 March 2005 or to grade B*10 with retroactive effect from 1 January 2005, as appropriate;

| — | In the alternative: (1) request the defendant to acknowledge that the applicants are eligible for promotion to grade A*10 or to grade B*10, as appropriate, on their next promotion and (2) order it to pay compensation for the loss suffered by the applicants as a result of not having been promoted to grade A*10 from 1 March 2005 or to grade B*10 from 1 January 2005, as appropriate; |
| --- | --- |

—

In the alternative: (1) request the defendant to acknowledge that the applicants are eligible for promotion to grade A*10 or to grade B*10, as appropriate, on their next promotion and (2) order it to pay compensation for the loss suffered by the applicants as a result of not having been promoted to grade A*10 from 1 March 2005 or to grade B*10 from 1 January 2005, as appropriate;

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

—

Order the defendant to pay the costs.

Pleas in law and main arguments

The applicants are officials of the old grades A7 or B2. Following the entry into force of the new Staff Regulations, their grades were replaced by grades A*8 and B*8 respectively, pursuant to Article 2 of Annex XIII to the Staff Regulations. They maintain that their careers have been slowed down because the new system of classification provides for the insertion of the additional grades A*9 and B*9 between the old grades A7 (now A*8) and A6 (now A*10) and between the old grades B2 (now B*8) and B1 (now B*10).

In support of their application, the applicants submit that the application in their case of Article 2 of Annex XIII to the Staff Regulations, without any specific measure to compensate for the loss suffered in terms of their careers, is unlawful. That plea of illegality is founded, first, on breach of the principle of equivalence between the old and new career structures, a principle laid down by Article 6 of the Staff Regulations. Pursuant to that provision, the appointing authority should have entered the applicants on the list of officials promoted to grades A*10 and B*10 under the 2005 promotion exercise.

The applicants also claim to have been victims of a breach of the principle of equal treatment by comparison with their colleagues in grades A7 and B2 who were promoted before the entry into force of the new Staff Regulations.

Lastly, the applicants allege, first, breach of the legitimate expectation created on their part by the assurances of the Council and Commission that the new career structure would not lead to any deterioration in their working conditions and, second, breach of their acquired rights and misuse of powers.

---

| 17.6.2006 | EN | Official Journal of the European Union | C 143/39 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/39

---

Action brought on 4 May 2006 — Skareby v Commission

(Case F-46/06)

(2006/C 143/75)

Language of the case: French

Parties

Applicant: Carina Skareby (Bichkek, Kyrgyzstan) (represented by: S. Rodrigues and Y. Minatchy, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul the decision of the appointing authority of 25 January 2006 responding to the applicant's complaint, and the career development report (CDR) compiled with respect to her for the period 1 January to 31 December 2004; |
| --- | --- |

—

Annul the decision of the appointing authority of 25 January 2006 responding to the applicant's complaint, and the career development report (CDR) compiled with respect to her for the period 1 January to 31 December 2004;

| — | Award the applicant damages for the harm to her career and for the material and non-material harm suffered, in an amount assessed in part by the applicant at EUR 20 000, the remaining part to be assessed by the Tribunal on equitable principles; |
| --- | --- |

—

Award the applicant damages for the harm to her career and for the material and non-material harm suffered, in an amount assessed in part by the applicant at EUR 20 000, the remaining part to be assessed by the Tribunal on equitable principles;

| — | Order the Commission of the European Communities to pay the costs. |
| --- | --- |

—

Order the Commission of the European Communities to pay the costs.

Pleas in law and main arguments

In support of her application, the applicant first alleges failure to comply with the rules relating to the establishment of the CDR. The authorities infringed the rules of procedure laid down by the General Implementing Rules for Article 43 of the Staff Regulations, made manifest errors of assessment and failed to comply with the duty to give reasons.

The applicant also pleads breach of the rights of the defence, of the duty to have regard for the interests of officials and of the principle of sound administration.

Lastly, she claims that the authorities are guilty of a misuse of powers and of an abuse of process.

---

III Notices

| 17.6.2006 | EN | Official Journal of the European Union | C 143/41 |
| --- | --- | --- | --- |

17.6.2006

EN

Official Journal of the European Union

C 143/41

---

(2006/C 143/76)

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

OJ C 131, 3.6.2006

Past publications

OJ C 121, 20.5.2006

OJ C 108, 6.5.2006

OJ C 96, 22.4.2006

OJ C 86, 8.4.2006

OJ C 74, 25.3.2006

OJ C 60, 11.3.2006

These texts are available on:

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

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

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

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

---