# Official Journal C 257/15 O

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 257 |
| | |
| English edition | Information and Notices | Volume 4815 October 2005 |

ISSN 1725-2423

Official Journal

of the European Union

C 257

English edition

Information and Notices

Volume 4815 October 2005

---

| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2005/C 257/1 | Case C-396/03 P: Appeal brought on 24 September 2003 by Magnus Killinger against the order made on 8 July 2003 by the Court of First Instance of the European Communities in Case T-186/03 Magnus Killinger v Federal Republic of Germany, Council of the European Union and Commission of the European Communities | 1 |
| 2005/C 257/2 | Case C-279/05: Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven by order of that court of 30 June 2005 in Vonk Dairy Products B.V., Ittevoort v Productschap Zuivel | 1 |
| 2005/C 257/3 | Case C-288/05: Reference for a preliminary ruling from the Bundesgerichtshof by order of that court of 30 June 2005 in criminal proceedings against Jürgen Kretzinger | 2 |
| 2005/C 257/4 | Case C-295/05: Reference for a preliminary ruling from the Tribunal Supremo, Sala de lo Contencioso-Administrativo, by order of that court of 1 April 2005 in Asociación Nacional de Empresas Forestales v Transformación Agraria S.A (TRAGSA) and Administración del Estado | 2 |
| 2005/C 257/5 | Case C-306/05: Reference for a preliminary ruling from the Audiencia Provincial de Barcelona (Spain) by order of that court of 7 June 2005 in Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SL | 3 |
| 2005/C 257/6 | Case C-307/05: Reference for a preliminary ruling from the Juzgado de lo Social No 1 of San Sebastián (Spain) by order of that court of 6 July 2005 in Yolanda Del Cerro Alonso v Osakidetza (Servicio Vasco de Salud) (Basque Health Service) | 3 |
| 2005/C 257/7 | Case C-316/05: Reference for a preliminary ruling from the Högsta Domstolen by order of that court of 9 August 2005 in Nokia Corporation v Joacim Wärdell | 4 |
| 2005/C 257/8 | Case C-318/05: Action brought on 17 August 2005 by the Commission of the European Communities against the Federal Republic of Germany | 4 |
| 2005/C 257/9 | Case C-319/05: Action brought on 19 August 2005 by the Commission of the European Communities against the Federal Republic of Germany | 5 |
| 2005/C 257/0 | Case C-321/05: Reference for a preliminary ruling from the Østre Landsret by order of that court of 3 August 2004 in Hans Markus Kofoed v Skatteministeriet | 6 |
| 2005/C 257/1 | Case C-322/05 P: Appeal brought on 24 August 2005 by Hippocrate Vounakis against the order made on 2 June 2005 by the Court of First Instance of the European Communities (Third Chamber) in Case T-326/03: Hippocrate Vounakis v Commission of the European Communities | 6 |
| 2005/C 257/2 | Case C-327/05: Action brought on 30 August 2005 by the Commission of the European Communities against the Kingdom of Denmark | 7 |
| | COURT OF FIRST INSTANCE |
| 2005/C 257/3 | Case T-53/02: Judgment of the Court of First Instance of 13 September 2005 — Ricosmos BV v Commission (Customs law — External Community transit operation concerning cigarettes — Fraud — Application for remission of import duties — Regulation (EEC) No 2913/92 — Regulation (EEC) No 2454/93 — Equity clause — Compliance with time-limits — Rights of the defence — Principle of proportionality — Concept of obvious negligence) | 8 |
| 2005/C 257/4 | Case T-140/02: Judgment of the Court of First Instance of 13 September 2005 — Sportwetten GmbH Gera v OHIM (Community trade mark — Application for a declaration of invalidity — Figurative Community trade mark including the word element INTERTOPS — Mark contrary to public policy or to accepted principles of morality — Article 7(1)(f) and (2) and Article 51 of Regulation (EC) No 40/94) | 8 |
| 2005/C 257/5 | Case T-99/03: Judgment of the Court of First Instance of 13 September 2005 — Atienza Morales v Commission (Officials — Remuneration — Expatriation allowance — Article 4(1)(a) of Annex VII to the Staff Regulations — Meaning of international organisation) | 9 |
| 2005/C 257/6 | Joined Cases T-178/03 and 179/03: Judgment of the Court of First Instance of 8 September 2005 — CeWe Color v OHIM (Community trade mark — Word signs DigiFilm and DigiFilmMaker — Absolute grounds for refusal — Article 7(1)(b) and (c) of Regulation (EC) No 40/94) | 9 |
| 2005/C 257/7 | Case T-272/03: Judgment of the Court of First Instance of 13 September 2005 — Fernández Gómez v Commission (Staff cases — Temporary agent — Article 2(a) of the CEOS — Admissibility — Confirmatory act — Limitation of the duration of the contract — Possibility of renewal — Anti-overlap rule — Period worked as a national expert on secondment — Discretionary power of the Commission) | 9 |
| 2005/C 257/8 | Case T-283/03: Judgment of the Court of First Instance of 13 September 2005 — Recalde Langarica v Commission (Officials — Expatriation allowance — Article 4(1)(a) of Annex VII to the Staff Regulations — Rights of the defence — Article 26 of the Staff Regulations — Manifest error of assessment — Meaning of habitually reside — Work done for another State) | 10 |
| 2005/C 257/9 | Case T-72/04: Judgment of the Court of First Instance of 13 September 2005 — Hosman-Chevalier v Commission (Officials — Remuneration — Expatriation allowance — Article 4(1)(a) of Annex VII to the Staff Regulations — Meaning of work done for another State) | 10 |
| 2005/C 257/0 | Case T-181/04: Judgment of the Court of First Instance of 7 September 2005 — Heinen v Commission (Officials — Internal competition — Oral test — Non-placement on the reserve list — Choice of language — Breach of the notice of competition — Equality of treatment) | 11 |
| 2005/C 257/1 | Case T-320/04: Judgment of the Court of First Instance of 12 September 2005 — Dionyssopoulou v Council (Officials — Invalidity pension — Correction coefficient — Meaning of residence — United Kingdom) | 11 |
| 2005/C 257/2 | Case T-376/04: Order of the Court of First Instance of 22 July 2005 — Polyelectrolyte Producers Group v Council and Commission (Action for annulment — Council decision determining the Community's position — Decision of the EEA Joint Committee — Objection of inadmissibility — Challengeable act — Standing to bring proceedings — Inadmissibility) | 11 |
| 2005/C 257/3 | Case T-85/05 R: Order of the President of the Court of First Instance of 23 May 2005: Dimos Ano Liosion and Others v Commission (Interim measures — Cohesion Fund — Co-financing decision — Project for hygienic infill of domestic waste — Admissibility — Prima facie case — Urgency — None) | 12 |
| 2005/C 257/4 | Case T-290/05: Action brought on 25 July 2005 — Friedrich Weber v Commission | 12 |
| 2005/C 257/5 | Case T-296/05: Action brought on 28 July 2005 — Luigi Marcuccio v Commission of the European Communities | 13 |
| 2005/C 257/6 | Case T-297/05: Action brought on 29 July 2005 by IPK International — World Tourism Marketing Consultants v Commission | 13 |
| 2005/C 257/7 | Case T-299/05: Action brought on 26 July 2005 — Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision/Council | 14 |
| 2005/C 257/8 | Case T-303/95: Action brought on 3 August 2005 — ACEA Electrabel Produzione SpA/Commission of the European Communities | 14 |
| 2005/C 257/9 | Case T-304/05: Action brought on 4 August 2005 — Cain Cellars v OHIM | 15 |
| 2005/C 257/0 | Case T-308/05: Action brought on 10 August 2005 — Italian Republic/Commission of the European Communities | 16 |
| 2005/C 257/1 | Case T-313/05: Action brought on 10 August 2005 — Microsoft/Commission | 16 |
| 2005/C 257/2 | Case T-325/05: Action brought on 30 August 2005 — TUI AG v OHIM | 17 |
| 2005/C 257/3 | Case T-329/05: Action brought on 26 August 2005 — Movimondo ONLUS v Commission of the European Communities | 18 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2005/C 257/1

Case C-396/03 P: Appeal brought on 24 September 2003 by Magnus Killinger against the order made on 8 July 2003 by the Court of First Instance of the European Communities in Case T-186/03 Magnus Killinger v Federal Republic of Germany, Council of the European Union and Commission of the European Communities

1

2005/C 257/2

Case C-279/05: Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven by order of that court of 30 June 2005 in Vonk Dairy Products B.V., Ittevoort v Productschap Zuivel

1

2005/C 257/3

Case C-288/05: Reference for a preliminary ruling from the Bundesgerichtshof by order of that court of 30 June 2005 in criminal proceedings against Jürgen Kretzinger

2

2005/C 257/4

Case C-295/05: Reference for a preliminary ruling from the Tribunal Supremo, Sala de lo Contencioso-Administrativo, by order of that court of 1 April 2005 in Asociación Nacional de Empresas Forestales v Transformación Agraria S.A (TRAGSA) and Administración del Estado

2

2005/C 257/5

Case C-306/05: Reference for a preliminary ruling from the Audiencia Provincial de Barcelona (Spain) by order of that court of 7 June 2005 in Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SL

3

2005/C 257/6

Case C-307/05: Reference for a preliminary ruling from the Juzgado de lo Social No 1 of San Sebastián (Spain) by order of that court of 6 July 2005 in Yolanda Del Cerro Alonso v Osakidetza (Servicio Vasco de Salud) (Basque Health Service)

3

2005/C 257/7

Case C-316/05: Reference for a preliminary ruling from the Högsta Domstolen by order of that court of 9 August 2005 in Nokia Corporation v Joacim Wärdell

4

2005/C 257/8

Case C-318/05: Action brought on 17 August 2005 by the Commission of the European Communities against the Federal Republic of Germany

4

2005/C 257/9

Case C-319/05: Action brought on 19 August 2005 by the Commission of the European Communities against the Federal Republic of Germany

5

2005/C 257/0

Case C-321/05: Reference for a preliminary ruling from the Østre Landsret by order of that court of 3 August 2004 in Hans Markus Kofoed v Skatteministeriet

6

2005/C 257/1

Case C-322/05 P: Appeal brought on 24 August 2005 by Hippocrate Vounakis against the order made on 2 June 2005 by the Court of First Instance of the European Communities (Third Chamber) in Case T-326/03: Hippocrate Vounakis v Commission of the European Communities

6

2005/C 257/2

Case C-327/05: Action brought on 30 August 2005 by the Commission of the European Communities against the Kingdom of Denmark

7

COURT OF FIRST INSTANCE

2005/C 257/3

Case T-53/02: Judgment of the Court of First Instance of 13 September 2005 — Ricosmos BV v Commission (Customs law — External Community transit operation concerning cigarettes — Fraud — Application for remission of import duties — Regulation (EEC) No 2913/92 — Regulation (EEC) No 2454/93 — Equity clause — Compliance with time-limits — Rights of the defence — Principle of proportionality — Concept of obvious negligence)

8

2005/C 257/4

Case T-140/02: Judgment of the Court of First Instance of 13 September 2005 — Sportwetten GmbH Gera v OHIM (Community trade mark — Application for a declaration of invalidity — Figurative Community trade mark including the word element INTERTOPS — Mark contrary to public policy or to accepted principles of morality — Article 7(1)(f) and (2) and Article 51 of Regulation (EC) No 40/94)

8

2005/C 257/5

Case T-99/03: Judgment of the Court of First Instance of 13 September 2005 — Atienza Morales v Commission (Officials — Remuneration — Expatriation allowance — Article 4(1)(a) of Annex VII to the Staff Regulations — Meaning of international organisation)

9

2005/C 257/6

Joined Cases T-178/03 and 179/03: Judgment of the Court of First Instance of 8 September 2005 — CeWe Color v OHIM (Community trade mark — Word signs DigiFilm and DigiFilmMaker — Absolute grounds for refusal — Article 7(1)(b) and (c) of Regulation (EC) No 40/94)

9

2005/C 257/7

Case T-272/03: Judgment of the Court of First Instance of 13 September 2005 — Fernández Gómez v Commission (Staff cases — Temporary agent — Article 2(a) of the CEOS — Admissibility — Confirmatory act — Limitation of the duration of the contract — Possibility of renewal — Anti-overlap rule — Period worked as a national expert on secondment — Discretionary power of the Commission)

9

2005/C 257/8

Case T-283/03: Judgment of the Court of First Instance of 13 September 2005 — Recalde Langarica v Commission (Officials — Expatriation allowance — Article 4(1)(a) of Annex VII to the Staff Regulations — Rights of the defence — Article 26 of the Staff Regulations — Manifest error of assessment — Meaning of habitually reside — Work done for another State)

10

2005/C 257/9

Case T-72/04: Judgment of the Court of First Instance of 13 September 2005 — Hosman-Chevalier v Commission (Officials — Remuneration — Expatriation allowance — Article 4(1)(a) of Annex VII to the Staff Regulations — Meaning of work done for another State)

10

2005/C 257/0

Case T-181/04: Judgment of the Court of First Instance of 7 September 2005 — Heinen v Commission (Officials — Internal competition — Oral test — Non-placement on the reserve list — Choice of language — Breach of the notice of competition — Equality of treatment)

11

2005/C 257/1

Case T-320/04: Judgment of the Court of First Instance of 12 September 2005 — Dionyssopoulou v Council (Officials — Invalidity pension — Correction coefficient — Meaning of residence — United Kingdom)

11

2005/C 257/2

Case T-376/04: Order of the Court of First Instance of 22 July 2005 — Polyelectrolyte Producers Group v Council and Commission (Action for annulment — Council decision determining the Community's position — Decision of the EEA Joint Committee — Objection of inadmissibility — Challengeable act — Standing to bring proceedings — Inadmissibility)

11

2005/C 257/3

Case T-85/05 R: Order of the President of the Court of First Instance of 23 May 2005: Dimos Ano Liosion and Others v Commission (Interim measures — Cohesion Fund — Co-financing decision — Project for hygienic infill of domestic waste — Admissibility — Prima facie case — Urgency — None)

12

2005/C 257/4

Case T-290/05: Action brought on 25 July 2005 — Friedrich Weber v Commission

12

2005/C 257/5

Case T-296/05: Action brought on 28 July 2005 — Luigi Marcuccio v Commission of the European Communities

13

2005/C 257/6

Case T-297/05: Action brought on 29 July 2005 by IPK International — World Tourism Marketing Consultants v Commission

13

2005/C 257/7

Case T-299/05: Action brought on 26 July 2005 — Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision/Council

14

2005/C 257/8

Case T-303/95: Action brought on 3 August 2005 — ACEA Electrabel Produzione SpA/Commission of the European Communities

14

2005/C 257/9

Case T-304/05: Action brought on 4 August 2005 — Cain Cellars v OHIM

15

2005/C 257/0

Case T-308/05: Action brought on 10 August 2005 — Italian Republic/Commission of the European Communities

16

2005/C 257/1

Case T-313/05: Action brought on 10 August 2005 — Microsoft/Commission

16

2005/C 257/2

Case T-325/05: Action brought on 30 August 2005 — TUI AG v OHIM

17

2005/C 257/3

Case T-329/05: Action brought on 26 August 2005 — Movimondo ONLUS v Commission of the European Communities

18

| | III   Notices |
| --- | --- |
| 2005/C 257/4 | Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 243, 1.10.2005 | 20 |

III   Notices

2005/C 257/4

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 243, 1.10.2005

Official Journal of the European Union

20

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

EN

---

I Information

Court of Justice

COURT OF JUSTICE

| 15.10.2005 | EN | Official Journal of the European Union | C 257/1 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/1

---

Appeal brought on 24 September 2003 by Magnus Killinger against the order made on 8 July 2003 by the Court of First Instance of the European Communities in Case T-186/03 Magnus Killinger v Federal Republic of Germany, Council of the European Union and Commission of the European Communities

(Case C-396/03 P)

(2005/C 257/01)

Language of the case: German

An appeal against the order of 8 July 2003 by the Court of First Instance of the European Communities in Case T-186/03 Magnus Killinger v Federal Republic of Germany, Council of the European Union and Commission of the European Communities was brought before the Court of Justice of the European Communities on 24 September 2003 by Magnus Killinger, represented by T. Scheuernstuhl, Rechtsanwalt, Würzburger Straße, D-97440 Werneck.

The Court of Justice of the European Communities (Fourth Chamber) made an order on 3 June 2005 in which it:

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

1.

Dismisses the appeal;

| 2. | Orders the appellant to pay his own costs. |
| --- | --- |

2.

Orders the appellant to pay his own costs.

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/1 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/1

---

Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven by order of that court of 30 June 2005 in Vonk Dairy Products B.V., Ittevoort v Productschap Zuivel

(Case C-279/05)

(2005/C 257/02)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the College van Beroep voor het bedrijfsleven of 30 June 2005, received at the Court Registry on 11 July 2005, for a preliminary ruling in the proceedings between Vonk Dairy Products B.V. and Productschap Zuivel on the following questions:

| 1. | Should Articles 16 to 18 of Regulation (EEC) No 3665/87 (1), as applicable at the material time, be interpreted as meaning that, if variable refunds are definitively paid after acceptance of the import documents, subsequent evidence that the goods have been re-exported may lead to the conclusion that the refunds have been wrongly paid only in the event of abuse on the part of the exporter? |
| --- | --- |

1.

Should Articles 16 to 18 of Regulation (EEC) No 3665/87 (1), as applicable at the material time, be interpreted as meaning that, if variable refunds are definitively paid after acceptance of the import documents, subsequent evidence that the goods have been re-exported may lead to the conclusion that the refunds have been wrongly paid only in the event of abuse on the part of the exporter?

| 2. | If question 1 must be answered in the negative, what criteria apply to enable it to be established when the re-exportation of goods necessarily leads to the conclusion that definitively paid variable refunds were wrongly paid? |
| --- | --- |

2.

If question 1 must be answered in the negative, what criteria apply to enable it to be established when the re-exportation of goods necessarily leads to the conclusion that definitively paid variable refunds were wrongly paid?

| 3. | What criteria apply to enable it to be established whether there has been a continuous or repeated irregularity as referred to in the second subparagraph of Article 3(1) of Regulation (EC, Euratom) No 2988/95 (2)? The College would particularly like to know whether a continuous or repeated irregularity is deemed to have occurred where the irregularity relates to a relatively small proportion of all transactions in a given period and the transactions in which an irregularity has been detected always concern different consignments. |
| --- | --- |

3.

What criteria apply to enable it to be established whether there has been a continuous or repeated irregularity as referred to in the second subparagraph of Article 3(1) of Regulation (EC, Euratom) No 2988/95 (2)? The College would particularly like to know whether a continuous or repeated irregularity is deemed to have occurred where the irregularity relates to a relatively small proportion of all transactions in a given period and the transactions in which an irregularity has been detected always concern different consignments.

---

(1)  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 L 351, p. 1).

(2)  Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ L 312, p. 1).

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/2 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/2

---

Reference for a preliminary ruling from the Bundesgerichtshof by order of that court of 30 June 2005 in criminal proceedings against Jürgen Kretzinger

(Case C-288/05)

(2005/C 257/03)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Bundesgerichtshof of 30 June 2005, received at the Court Registry on 19 July 2005, for a preliminary ruling in criminal proceedings against Jürgen Kretzinger on the following questions concerning the interpretation of Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (‘CISA’):

| 1. | Is it a criminal prosecution of ‘the same acts’ within the meaning of Article 54 of the CISA (1) if a defendant has been convicted by an Italian court of importing contraband foreign tobacco into Italy and of being in possession of it there, as well as of failing to pay duty at the border on importing the tobacco, and is subsequently convicted by a German court — in connection with his earlier receipt of the same goods in Greece — of being party to evasion in relation to the (technically) Greek import duty that arose when the goods were previously imported by third parties, in so far as the defendant had intended from the outset to transport the goods to Great Britain via Italy, after taking delivery of them in Greece? |
| --- | --- |

1.

Is it a criminal prosecution of ‘the same acts’ within the meaning of Article 54 of the CISA (1) if a defendant has been convicted by an Italian court of importing contraband foreign tobacco into Italy and of being in possession of it there, as well as of failing to pay duty at the border on importing the tobacco, and is subsequently convicted by a German court — in connection with his earlier receipt of the same goods in Greece — of being party to evasion in relation to the (technically) Greek import duty that arose when the goods were previously imported by third parties, in so far as the defendant had intended from the outset to transport the goods to Great Britain via Italy, after taking delivery of them in Greece?

| 2. | Has a penalty ‘been enforced’ or is it ‘actually in the process of being enforced’ within the meaning of Article 54 of the CISA






  (a) | if the defendant was given a custodial sentence, the enforcement of which was suspended in accordance with the law of the State in which judgment was given; |
| --- | --- | --- |

2.

Has a penalty ‘been enforced’ or is it ‘actually in the process of being enforced’ within the meaning of Article 54 of the CISA

(a)

if the defendant was given a custodial sentence, the enforcement of which was suspended in accordance with the law of the State in which judgment was given;

| (b) | if the defendant was for a short time taken into police custody and/or held on remand pending trial, and that detention would count towards any subsequent enforcement of the penalty of imprisonment under the law of the State in which judgment was given? |
| --- | --- |

(b)

if the defendant was for a short time taken into police custody and/or held on remand pending trial, and that detention would count towards any subsequent enforcement of the penalty of imprisonment under the law of the State in which judgment was given?

| 3. | Is the interpretation of the notion of enforcement for the purposes of Article 54 of the CISA affected by






  (a) | the fact that, having transposed the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1) into national law, the (first) State in which judgment was given is in a position at any time to enforce its judgment which, under national law, is final and binding; |
| --- | --- | --- |

3.

Is the interpretation of the notion of enforcement for the purposes of Article 54 of the CISA affected by

(a)

the fact that, having transposed the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1) into national law, the (first) State in which judgment was given is in a position at any time to enforce its judgment which, under national law, is final and binding;

| (b) | the fact that a request for judicial assistance by the State in which judgment was given, with a view to extraditing the convicted person or enforcing judgment within that State, could not automatically be complied with because judgment was given in absentia? |
| --- | --- |

(b)

the fact that a request for judicial assistance by the State in which judgment was given, with a view to extraditing the convicted person or enforcing judgment within that State, could not automatically be complied with because judgment was given in absentia?

---

(1)  OJ 2000 L 239, p. 19

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/2 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/2

---

Reference for a preliminary ruling from the Tribunal Supremo, Sala de lo Contencioso-Administrativo, by order of that court of 1 April 2005 in Asociación Nacional de Empresas Forestales v Transformación Agraria S.A (TRAGSA) and Administración del Estado

(Case C-295/05)

(2005/C 257/04)

Language of the case: Spanish

Reference has been made to the Court of Justice of the European Communities by order of the Tribunal Supremo, Sala de lo Contencioso-Administrativo, (Supreme Court, Chamber for contentious administrative proceedings) of 1 April 2005, received at the Court Registry on 21 July 2005, for a preliminary ruling in the proceedings between Asociación Nacional de Empresas Forestales (National Association of Forestry Companies) and Transformación Agraria S.A (TRAGSA) and Administración del Estado on the following questions:

| 1. | Does Article 86(1) of the Treaty [establishing the European Community] permit a Member State to grant ex lege to a public undertaking a legal regime which allows it to execute public works without being subject to the general rules on the award of public contracts by tender, where there are no special circumstances of urgency or public interest, both below and above the financial threshold laid down by the European Directives in this regard? |
| --- | --- |

1.

Does Article 86(1) of the Treaty [establishing the European Community] permit a Member State to grant ex lege to a public undertaking a legal regime which allows it to execute public works without being subject to the general rules on the award of public contracts by tender, where there are no special circumstances of urgency or public interest, both below and above the financial threshold laid down by the European Directives in this regard?

| 2. | Is such a legal regime compatible with the provisions of Council Directives 93/36/EEC (1) and 93/37/EEC of 14 June 1993, (2) European Parliament and Council Directive 97/52/EC of 13 October 1997 (3) and Commission Directive 2001/78[/EC] (4) amending the three previous directives — legislation recently recast in European Parliament and Council Directive 2004/18/EC of 31 March 2004? (5) |
| --- | --- |

2.

Is such a legal regime compatible with the provisions of Council Directives 93/36/EEC (1) and 93/37/EEC of 14 June 1993, (2) European Parliament and Council Directive 97/52/EC of 13 October 1997 (3) and Commission Directive 2001/78[/EC] (4) amending the three previous directives — legislation recently recast in European Parliament and Council Directive 2004/18/EC of 31 March 2004? (5)

| 3. | Are the statements contained in the judgment of the Court of Justice of the European [Communities] (6) of 8 May 2003 in Case C-349/97 Spain v Commission applicable in any event to TRAGSA and its subsidiaries, in the light of the rest of the case-law of the European Court regarding public procurement and in view of the fact that the Administration entrusts to TRAGSA a large number of works which are not subject to the rules governing free competition, and that this situation might cause considerable distortion of the relevant market? |
| --- | --- |

3.

Are the statements contained in the judgment of the Court of Justice of the European [Communities] (6) of 8 May 2003 in Case C-349/97 Spain v Commission applicable in any event to TRAGSA and its subsidiaries, in the light of the rest of the case-law of the European Court regarding public procurement and in view of the fact that the Administration entrusts to TRAGSA a large number of works which are not subject to the rules governing free competition, and that this situation might cause considerable distortion of the relevant market?

---

(1)  Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ L 199, p. 1).

(2)  Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ L 199, p. 54).

(3)  European Parliament and Council Directive 97/52/EC of 13 October 1997 amending Directives 92/50/EEC, 93/36/EEC and 93/37/EEC concerning the coordination of procedures for the award of public service contracts, public supply contracts and public works contracts respectively (OJ L 328, p. 1).

(4)  Commission Directive 2001/78/EC of 13 September 2001 amending Annex IV to Council Directive 93/36/EEC, Annexes IV, V and VI to Council Directive 93/37/EEC, Annexes III and IV to Council Directive 92/50/EEC, as amended by Directive 97/52/EC, and Annexes XII to XV, XVII and XVIII to Council Directive 93/38/EEC, as amended by Directive 98/4/EC (Directive on the use of standard forms in the publication of public contract notices) (OJ L 285, p. 1).

(5)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ L 134, p. 114).

(6)  [2003] ECR I–3851.

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/3 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/3

---

Reference for a preliminary ruling from the Audiencia Provincial de Barcelona (Spain) by order of that court of 7 June 2005 in Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SL

(Case C-306/05)

(2005/C 257/05)

Language of the case: Spanish

Reference has been made to the Court of Justice of the European Communities by order of the Audiencia Provincial de Barcelona (Provincial High Court, Barcelona) (Spain) of 7 June 2005, received at the Court Registry on 3 August 2005, for a preliminary ruling in the proceedings between Sociedad General de Autores y Editores de España (SGAE) and Rafael Hoteles SL on the following questions:

| 1. | Does the installation in hotel rooms of television sets to which a satellite or terrestrial television signal is sent by cable constitute an act of communication to the public which is covered by the harmonisation of national laws protecting copyright provided for in Article 3 of Directive 2001/29/EC (1) of the European Parliament and of the Council of 22 May 2001? |
| --- | --- |

1.

Does the installation in hotel rooms of television sets to which a satellite or terrestrial television signal is sent by cable constitute an act of communication to the public which is covered by the harmonisation of national laws protecting copyright provided for in Article 3 of Directive 2001/29/EC (1) of the European Parliament and of the Council of 22 May 2001?

| 2. | Is the fact of deeming a hotel room to be a strictly domestic location, so that communication by means of television sets to which is fed a signal previously received by the hotel is not regarded as communication to the public, contrary to the protection of copyright pursued by Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001? |
| --- | --- |

2.

Is the fact of deeming a hotel room to be a strictly domestic location, so that communication by means of television sets to which is fed a signal previously received by the hotel is not regarded as communication to the public, contrary to the protection of copyright pursued by Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001?

| 3. | For the purposes of protecting copyright in relation to acts of communication to the public provided for in Directive 2001/29/EEC of the European Parliament and of the Council of 22 May 2001, can a communication that is effected through a television set inside a hotel bedroom be regarded as public because successive viewers have access to the work? |
| --- | --- |

3.

For the purposes of protecting copyright in relation to acts of communication to the public provided for in Directive 2001/29/EEC of the European Parliament and of the Council of 22 May 2001, can a communication that is effected through a television set inside a hotel bedroom be regarded as public because successive viewers have access to the work?

---

(1)  Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ L 167, of 22.6.2001 p. 10).

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/3 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/3

---

Reference for a preliminary ruling from the Juzgado de lo Social No 1 of San Sebastián (Spain) by order of that court of 6 July 2005 in Yolanda Del Cerro Alonso v Osakidetza (Servicio Vasco de Salud) (Basque Health Service)

(Case C-307/05)

(2005/C 257/06)

Language of the case: Spanish

Reference has been made to the Court of Justice of the European Communities by order of the Juzgado de lo Social No 1 of San Sebastián (Spain) of 6 July 2005, received at the Court Registry on 4 August 2005, for a preliminary ruling in the proceedings between Yolanda Del Cerro Alonso and Osakidetza (Servicio Vasco de Salud) (Basque Health Service) on the following questions:

| 1. | Where Directive 1999/70/EC (1) provides that fixed-term workers are not be treated in a less favourable manner than comparable permanent workers, does this also refer to remuneration? |
| --- | --- |

1.

Where Directive 1999/70/EC (1) provides that fixed-term workers are not be treated in a less favourable manner than comparable permanent workers, does this also refer to remuneration?

If the answer is affirmative:

| 2. | Is the fact that Article 44 of Law 55/2003 of 16 December 2003 of the Framework Statute for Statutory Workers in the Health Service provides that temporary workers are not entitled to the length of service allowance recognised for permanent workers an adequate and objective reason? |
| --- | --- |

2.

Is the fact that Article 44 of Law 55/2003 of 16 December 2003 of the Framework Statute for Statutory Workers in the Health Service provides that temporary workers are not entitled to the length of service allowance recognised for permanent workers an adequate and objective reason?

| 3. | Are the agreements concluded between the staff unions and the administration adequate and objective reasons for not recognising the length of service allowance for temporary workers? |
| --- | --- |

3.

Are the agreements concluded between the staff unions and the administration adequate and objective reasons for not recognising the length of service allowance for temporary workers?

---

(1)  Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ L 175, of 10/07/1999 p. 43).

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/4 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/4

---

Reference for a preliminary ruling from the Högsta Domstolen by order of that court of 9 August 2005 in Nokia Corporation v Joacim Wärdell

(Case C-316/05)

(2005/C 257/07)

Language of the case: Swedish

Reference has been made to the Court of Justice of the European Communities by order of the Högsta Domstolen (Supreme Court) of 9 August 2005, received at the Court Registry on 16 August 2005, for a preliminary ruling in the proceedings between Nokia Corporation and Joacim Wärdell on the following questions:

| 1. | Is the condition relating to special reasons in the first sentence of Article 98(1) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark to be interpreted as meaning that a court which finds that the defendant has infringed a Community trade mark may, irrespective of the other circumstances, refrain from issuing a specific prohibition of further infringement if the court considers that the risk of further infringement is not obvious or is otherwise merely limited? |
| --- | --- |

1.

Is the condition relating to special reasons in the first sentence of Article 98(1) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark to be interpreted as meaning that a court which finds that the defendant has infringed a Community trade mark may, irrespective of the other circumstances, refrain from issuing a specific prohibition of further infringement if the court considers that the risk of further infringement is not obvious or is otherwise merely limited?

| 2. | Is the condition relating to special reasons in the first sentence of Article 98(1) of the Regulation on the Community trade mark to be interpreted as meaning that a court which finds that the defendant has infringed a Community trade mark may, even if there is no such ground for refraining from issuing a prohibition of further infringement as contemplated in Question 1, refrain from issuing such a prohibition on the grounds that it is clear that a further infringement is covered by a statutory general prohibition of infringement under national law and that a penalty may be imposed on the defendant if he commits a further infringement intentionally or with gross negligence? |
| --- | --- |

2.

Is the condition relating to special reasons in the first sentence of Article 98(1) of the Regulation on the Community trade mark to be interpreted as meaning that a court which finds that the defendant has infringed a Community trade mark may, even if there is no such ground for refraining from issuing a prohibition of further infringement as contemplated in Question 1, refrain from issuing such a prohibition on the grounds that it is clear that a further infringement is covered by a statutory general prohibition of infringement under national law and that a penalty may be imposed on the defendant if he commits a further infringement intentionally or with gross negligence?

| 3. | If the answer to Question 2 is no, must specific measures, by which a prohibition is for example coupled with a penalty, be taken in such a case to ensure that the prohibition is complied with, even where it is clear that a further infringement is covered by a statutory general prohibition of infringement under national law and that a penalty may be imposed on the defendant if he commits a further infringement intentionally or with gross negligence? |
| --- | --- |

3.

If the answer to Question 2 is no, must specific measures, by which a prohibition is for example coupled with a penalty, be taken in such a case to ensure that the prohibition is complied with, even where it is clear that a further infringement is covered by a statutory general prohibition of infringement under national law and that a penalty may be imposed on the defendant if he commits a further infringement intentionally or with gross negligence?

| 4. | If the answer to Question 3 is yes, does this apply even where the conditions for adopting such a specific measure in the case of a corresponding infringement of a national trade mark would not be regarded as fulfilled? |
| --- | --- |

4.

If the answer to Question 3 is yes, does this apply even where the conditions for adopting such a specific measure in the case of a corresponding infringement of a national trade mark would not be regarded as fulfilled?

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/4 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/4

---

Action brought on 17 August 2005 by the Commission of the European Communities against the Federal Republic of Germany

(Case C-318/05)

(2005/C 257/08)

Language of the case: German

An action against the Federal Republic of Germany was brought before the Court of Justice of the European Communities on 17 August 2005 by the Commission of the European Communities, represented by Richard Lyal and Kilian Gross, acting as Agents, with an address for service in Luxembourg.

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

| 1. | declare that, by excluding school fees in respect of education abroad without exception from the tax-deductible special expenses provided for in Article 10(1)(9) of the Einkommensteuergesetzes (EStG) (German Law on income tax), the Federal Republic of Germany has failed to fulfil its obligations under Articles 18, 39, 43 and 49 EC; |
| --- | --- |

1.

declare that, by excluding school fees in respect of education abroad without exception from the tax-deductible special expenses provided for in Article 10(1)(9) of the Einkommensteuergesetzes (EStG) (German Law on income tax), the Federal Republic of Germany has failed to fulfil its obligations under Articles 18, 39, 43 and 49 EC;

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

2.

order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

According to the European Commission, the rule laid down in Article 10(1)(9) of the EStG is incompatible with the freedom to provide services and the rights to freedom of movement provided for in the EC Treaty.

Under Article 10(1)(9) of the EStG, taxable persons in Germany are able to deduct from their taxable income 30 % of the fees paid to state-approved or recognised private schools as special expenses from the overall amount of their taxable income. It is not possible to deduct tax in respect of school fees paid to private schools established in another Member State.

The Commission considers that the general exclusion of foreign private schools from that tax reduction is discriminatory. In its view, the tax disadvantage in respect of foreign private schools also infringes the freedom of foreign schools to provide services and the freedom of taxable persons established in Germany who wish to send their children to a foreign private school.

Foreign private schools are moreover required to set up in Germany if they wish to avoid a competitive disadvantage through the less favourable tax treatment of their customers. That constitutes an inadmissible restriction on freedom of establishment.

Finally, the restriction on the possibility of deduction tax infringes the right to freedom of movement of citizens from other EU Member States who wish to move to Germany, but who at the same time wish to continue having their children educated in their country of origin. The same applies in respect of German nationals who live in another Member State, but who are still subject to unlimited tax liability in Germany. They too are placed at a disadvantage if they wish to send their children to a private school outside Germany.

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/5 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/5

---

Action brought on 19 August 2005 by the Commission of the European Communities against the Federal Republic of Germany

(Case C-319/05)

(2005/C 257/09)

Language of the case: German

An action against the Federal Republic of Germany was brought before the Court of Justice of the European Communities on 19 August 2005 by the Commission of the European Communities, represented by Bruno Stromsky and Bernhard Schima, acting as Agents, with an address for service in Luxembourg.

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

| 1. | declare that, by classifying a garlic preparation in capsule form, which does not fall under the definition of a medicinal product by virtue of its designation, as a medicinal product, the Federal Republic of Germany has failed to fulfil its obligations under Articles 28 and 30 EC; |
| --- | --- |

1.

declare that, by classifying a garlic preparation in capsule form, which does not fall under the definition of a medicinal product by virtue of its designation, as a medicinal product, the Federal Republic of Germany has failed to fulfil its obligations under Articles 28 and 30 EC;

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

2.

order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

By its action, the Commission challenges the classification by the German authorities of a garlic preparation in capsule form as a medicinal product.

The Commission takes the view that the product is not a medicinal product. Garlic is a widely available foodstuff. The sale of garlic is not to be restricted on grounds of health protection. The product is not a medicinal product by virtue of its designation, because it is not indicated or recommended for treating or preventing illnesses and, furthermore, it is not typically presented as a medicinal product.

In addition, it is not a medicinal product by virtue of its function. The mildly preventive effect of garlic against atherosclerosis does not lend the product any medicinal characteristic. In the first place, such an effect can be produced by the consumption of garlic foodstuffs in various forms. Secondly, other foodstuffs, such as for example various types of fish, can guard against atherosclerosis. Thirdly, various foodstuffs which are entirely general in nature reduce the risk of various illnesses (tomatoes, broccoli, cocoa etc). The Commission takes the view that this health-beneficial effect cannot result in such foodstuffs being termed medicinal products.

Likewise, the risks involved in consuming garlic in certain situations do not justify the product at issue being classified as a medicinal product. Those risks can be dealt with by less restrictive measures.

The product at issue is therefore not a medicinal product within the meaning of Community law. Therefore the fact that it is classified as a medicinal product in Germany constitutes a barrier to the free movement of goods. It is not clear how that barrier can be justified on the grounds of protection of public health.

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/6 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/6

---

Reference for a preliminary ruling from the Østre Landsret by order of that court of 3 August 2004 in Hans Markus Kofoed v Skatteministeriet

(Case C-321/05)

(2005/C 257/10)

Language of the case: Danish

Reference has been made to the Court of Justice of the European Communities by order of the Østre Landsret (Denmark) of 3 August 2004, received at the Court Registry on 23 August 2005, for a preliminary ruling in the proceedings between Hans Markus Kofoed and Skatteministeriet (Danish Ministry of Taxation) on the following question:

Is Article 2(d) of Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States to be interpreted as meaning that there is no exchange of shares within the meaning of that directive where the persons involved in the exchange of shares, at the same time as agreeing to exchange the shares in a non-legally binding manner, declare it to be their common intention to vote, at the first general meeting of the acquiring company after the exchange, in favour of distributing a profit in excess of 10 % of the nominal value of the security which was transferred in connection with the exchange of shares and such a profit is in fact distributed?

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/6 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/6

---

Appeal brought on 24 August 2005 by Hippocrate Vounakis against the order made on 2 June 2005 by the Court of First Instance of the European Communities (Third Chamber) in Case T-326/03: Hippocrate Vounakis v Commission of the European Communities

(Case C-322/05 P)

(2005/C 257/11)

Language of the case: French

An appeal was brought on 24 August 2005 before the Court of Justice of the European Communities by Hippocrate Vounakis, represented by S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers, against the order made on 2 June 2005 by the Court of First Instance of the European Communities (Third Chamber) in Case T-326/03: Hippocrate Vounakis v Commission of the European Communities.

The appellant claims that the Court should:

| 1. | Annul the order of the Court of First Instance (Third Chamber) of 2 June 2005 in Case T-326/03 (Hippocrate Vounakis v Commission of the European Communities) in its entirety; |
| --- | --- |

1.

Annul the order of the Court of First Instance (Third Chamber) of 2 June 2005 in Case T-326/03 (Hippocrate Vounakis v Commission of the European Communities) in its entirety;

| 2. | Giving judgment itself, order that the action for annulment of the Commission's decision not to include the appellant's name on the list of officials promoted to Grade A4 under the 2002 promotion procedure is admissible; |
| --- | --- |

2.

Giving judgment itself, order that the action for annulment of the Commission's decision not to include the appellant's name on the list of officials promoted to Grade A4 under the 2002 promotion procedure is admissible;

| 3. | Order the defendant at first instance and on the appeal to pay the costs of the proceedings at first instance and on appeal. |
| --- | --- |

3.

Order the defendant at first instance and on the appeal to pay the costs of the proceedings at first instance and on appeal.

Pleas in law and main arguments:

In support of his appeal the appellant submits that the Court of First Instance erred in law in its definition of the decision challenged by the appellant.

The Court of First Instance wrongly held the decision challenged by the appellant to be the decision establishing the list of promoted officials, that decision consisting of a collection of individual acts of which the promoted officials are the addressees, whereas the decision challenged is the strictly individual decision not to include the appellant's name on the list of those promoted.

Since the appellant was not an addressee of the decision to promote the other officials, wrongly regarded as the challenged act, the Court of First Instance held that the second sentence of the second indent of Article 90(2) of the Staff Regulations was applicable and that therefore, with regard to him, although he was on annual leave until 16 September and the decision was published on 14 August 2002, the time-limit for his complaint started to run, in any event, on the date of publication of that list.

In so doing, the Court of First Instance misconstrued the first sentence of the second indent of Article 90(2) of the Staff Regulations since the act challenged is the individual decision not, after comparing the merits of the officials eligible for promotion, to promote the appellant and not the individual decisions to promote the other officials promoted who are not complaining about them.

Since it was part of an individual decision, it should have been ‘properly’ brought to his knowledge.

From the entirety of the arguments set out above, it is apparent that the Court of First Instance made an error of law.

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/7 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/7

---

Action brought on 30 August 2005 by the Commission of the European Communities against the Kingdom of Denmark

(Case C-327/05)

(2005/C 257/12)

Language of the case: Danish

An action against the Kingdom of Denmark was brought before the Court of Justice of the European Communities on 30 August 2005 by the Commission of the European Communities, represented by N.B. Rasmussen and A. Caeiros, acting as Agents, with an address for service in Luxembourg.

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

| 1. | declare that, by introducing and maintaining in force provisions which make intermediaries in the distribution chain liable under the same conditions as a manufacturer, contrary to Article 3(3) of Directive 85/374/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, the Kingdom of Denmark has failed in its obligation to give full effect to that directive; |
| --- | --- |

1.

declare that, by introducing and maintaining in force provisions which make intermediaries in the distribution chain liable under the same conditions as a manufacturer, contrary to Article 3(3) of Directive 85/374/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, the Kingdom of Denmark has failed in its obligation to give full effect to that directive;

| 2. | order the Kingdom of Denmark to pay the costs. |
| --- | --- |

2.

order the Kingdom of Denmark to pay the costs.

Pleas in law and main arguments

Paragraph 10 of the Danish Produktansvarslov (Law on Product Liability) provides that an intermediary ‘is directly liable in respect of defective products vis-à-vis injured parties and subsequent intermediaries in the distribution chain’.

The result of the Danish rules on the vicarious liability of intermediaries is that injured parties may bring an action directly against the intermediary (a term which is covered by ‘suppliers’, as defined in Article 3(3) of the directive), provided that the conditions governing an action in respect of defective product liability against the manufacturer are satisfied, that is to say, in so far as the injured party can establish that damage has been incurred as the result of a defective product. The issue as to whether the intermediary has or has not acted negligently is thus irrelevant in regard to the imposition of vicarious liability. The determinant factor is that liability in respect of the defective product can be imposed on the manufacturer.

Any person on whom, as an intermediary, vicarious liability has been imposed, may, under Paragraph 11(3) of the Produktansvarslov, bring an action for indemnification against both the preceding intermediary and the manufacturer.

It is the vicarious liability imposed on the intermediary that is contrary to the directive. The reason for this is that the directive provides that strict liability for defective products may be imposed on the manufacturer — and on the manufacturer alone. It is only in the instances indicated by the directive (Article 3(3)) that liability in respect of defective products can be imposed on the intermediary on an objective basis.

The Danish rules diverge from that system by introducing strict liability to pay compensation in the form of strict vicarious liability for intermediaries in all cases in which liability for defective products could be imposed on a manufacturer on an objective basis.

---

COURT OF FIRST INSTANCE

| 15.10.2005 | EN | Official Journal of the European Union | C 257/8 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/8

---

Judgment of the Court of First Instance of 13 September 2005 — Ricosmos BV v Commission

(Case T-53/02) (1)

(Customs law - External Community transit operation concerning cigarettes - Fraud - Application for remission of import duties - Regulation (EEC) No 2913/92 - Regulation (EEC) No 2454/93 - Equity clause - Compliance with time-limits - Rights of the defence - Principle of proportionality - Concept of obvious negligence)

(2005/C 257/13)

Language of the case: Dutch

Parties:

Applicant(s): Ricosmos BV (Delfzijl (Netherlands)) [represented by initially M. Chatelin, M. Fleers and P. Metzler, then by J. Hertoghs, lawyers,]

Defendant(s): Commission of the European Communities [represented by initially M. van Beck and R. Tricot, then by M. van Beck and B. Stromsky, Agents,]

Application for:

annulment of Commission Decision REM 09/00 of 16 November 2001 declaring that the remission of import duties in favour of the applicant which is the subject-matter of the application submitted by the Kingdom of the Netherlands is not justified

Operative part of the judgment:

The Court:

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

1)

Dismisses the application;

| 2) | Orders the applicant to bear its own costs and those of the Commission. |
| --- | --- |

2)

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

---

(1)  OJ C 118, 18.5.2002.

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/8 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/8

---

Judgment of the Court of First Instance of 13 September 2005 — Sportwetten GmbH Gera v OHIM

(Case T-140/02) (1)

(Community trade mark - Application for a declaration of invalidity - Figurative Community trade mark including the word element INTERTOPS - Mark contrary to public policy or to accepted principles of morality - Article 7(1)(f) and (2) and Article 51 of Regulation (EC) No 40/94)

(2005/C 257/14)

Language of the case: German

Parties:

Applicant(s): Sportwetten GmbH Gera (Gera, Germany) [represented by: A. Zumschlinge, lawyer]

Defendant(s): Office for Harmonisation in the Internal Market (Trademarks and Design) [represented by: D. Schennen and G. Schneider, acting as Agents]

Intervener(s): Intertops Sportwetten GmbH (Salzburg, Austria) [represented initially by H. Pfeifer, and subsequently by R. Heimler, lawyers]

Application for:

ACTION brought against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 February 2002 (Case R 338/2000-4), relating to an application for a declaration of invalidity of the figurative Community trade mark INTERTOPS

Operative part of the judgment:

| 1. | There is no need to adjudicate on the applicant's application for a declaration that the figurative Community trade mark including the word element INTERTOPS is invalid, or on the intervener's application for a document to be added to the file. |
| --- | --- |

1.

There is no need to adjudicate on the applicant's application for a declaration that the figurative Community trade mark including the word element INTERTOPS is invalid, or on the intervener's application for a document to be added to the file.

| 2. | The remainder of the action is dismissed. |
| --- | --- |

2.

The remainder of the action is dismissed.

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

3.

The applicant is ordered to pay all the costs.

---

(1)  OJ C 169, 13.7.2002

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/9 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/9

---

Judgment of the Court of First Instance of 13 September 2005 — Atienza Morales v Commission

(Case T-99/03) (1)

(Officials - Remuneration - Expatriation allowance - Article 4(1)(a) of Annex VII to the Staff Regulations - Meaning of ‘international organisation’)

(2005/C 257/15)

Language of the case: French

Parties:

Applicant(s): Maria Luisa Atienza Morales (Brussels, Belgium) (represented by: É. Boigelot, lawyer)

Defendant(s): Commission of the European Communities (represented by: J. Curral and V. Joris, agents)

Application for:

(i) annulment of the Commission's decision of 20 June 2002 refusing to grant the applicant payment of the expatriation allowance laid down in Article 4(1)(a) of Annex VII to the Staff Regulations of Officials of the European Communities and the Commission's decision of 13 December 2002 rejecting the complaint brought to that end and (ii) payment of that allowance from 1 April 2002

Operative part of the judgment:

The Court:

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

1)

Dismisses the application;

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

2)

Orders each party to bear its own costs.

---

(1)  OJ C 124, 24.5.2003.

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/9 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/9

---

Judgment of the Court of First Instance of 8 September 2005 — CeWe Color v OHIM

(Joined Cases T-178/03 and 179/03) (1)

(Community trade mark - Word signs DigiFilm and DigiFilmMaker - Absolute grounds for refusal - Article 7(1)(b) and (c) of Regulation (EC) No 40/94)

(2005/C 257/16)

Language of the case: German

Parties:

Applicant(s): CeWe Color AG & Co. OHG (Oldenburg, Germany) (represented by C. Spintig, S. Richter, U. Sander and H. Förster, lawyers)

Defendant(s): Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by I Mayer and M.G. Schneider, Agents)

Application for:

annulment of the decisions of the Third Board of Appeal of OHIM of 12 March 2003 (Cases R 638/2002-3 and R 641/2002-3), in relation to registration of the word signs DigiFilmMaker and DigiFilm as Community trade marks

Operative part of the judgment:

The Court:

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

1.

Dismisses the actions.

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 184, 2.8.2003

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/9 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/9

---

Judgment of the Court of First Instance of 13 September 2005 — Fernández Gómez v Commission

(Case T-272/03) (1)

(Staff cases - Temporary agent - Article 2(a) of the CEOS - Admissibility - Confirmatory act - Limitation of the duration of the contract - Possibility of renewal - Anti-overlap rule - Period worked as a national expert on secondment - Discretionary power of the Commission)

(2005/C 257/17)

Language of the case: French

Parties:

Applicant(s): Maria Dolores Fernández Gómez (Brussels, Belgium) (represented initially by J. Iturriagagoitia Bassas and K. Delvolvé and then by J. Iturriagagoitia Bassas, lawyers)

Defendant(s): Commission of the European Communities (represented initially by J. Curral, H. Tserepa-Lacombe and F. Clotuche-Duvieusart and then J. Curral and H. Tserepa-Lacombe, as agents)

Application for:

(i) annulment of the decision of the Authority Responsible for Concluding Contracts of Employment of 12 May 2003 rejecting the request for renewal of the applicant's temporary agent contract and (ii) an order that the Commission pay the sum of EUR 101 328,60, together with default interest, as compensation for the damage suffered

Operative part of the judgment:

The Court:

| 1) | Annuls the decision of the Authority Responsible for Concluding Contracts of Employment of 12 May 2003 rejecting the request for renewal of the applicant's contract; |
| --- | --- |

1)

Annuls the decision of the Authority Responsible for Concluding Contracts of Employment of 12 May 2003 rejecting the request for renewal of the applicant's contract;

| 2) | Orders the Commission to pay the applicant the sum of EUR 50 000 (fifty thousand euro) as compensation for the damage suffered; |
| --- | --- |

2)

Orders the Commission to pay the applicant the sum of EUR 50 000 (fifty thousand euro) as compensation for the damage suffered;

| 3) | Orders the Commission to pay its own costs and those of the applicant, including those of the procedure for interim measures. |
| --- | --- |

3)

Orders the Commission to pay its own costs and those of the applicant, including those of the procedure for interim measures.

---

(1)  OJ C 251, 18.10.2003.

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/10 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/10

---

Judgment of the Court of First Instance of 13 September 2005 — Recalde Langarica v Commission

(Case T-283/03) (1)

(Officials - Expatriation allowance - Article 4(1)(a) of Annex VII to the Staff Regulations - Rights of the defence - Article 26 of the Staff Regulations - Manifest error of assessment - Meaning of ‘habitually reside’ - Work done for another State)

(2005/C 257/18)

Language of the case: Spanish

Parties:

Applicant: Recalde Langarica (Brussels, Belgium) [represented by: R.García-Gallardo Gil-Fournier and D. Domínguez Pérez, lawyers]

Defendant: Commission of the European Communities [represented by: J. Currall, acting as Agent, and J. Rivas Andrés and J. Gutiérrez Gisbert, lawyers]

Application for:

annulment of the Commission's decision withdrawing the applicant's entitlement to the expatriation allowance.

Operative part of the judgment:

The Court:

| 1) | Dismisses the action. |
| --- | --- |

1)

Dismisses the action.

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

2)

Orders the parties to bear their own costs.

---

(1)  OJ C 239 of 4.10.2003.

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/10 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/10

---

Judgment of the Court of First Instance of 13 September 2005 — Hosman-Chevalier v Commission

(Case T-72/04) (1)

(Officials - Remuneration - Expatriation allowance - Article 4(1)(a) of Annex VII to the Staff Regulations - Meaning of ‘work done for another State’)

(2005/C 257/19)

Language of the case: French

Parties:

Applicant(s): Sonja Hosman-Chevalier (Brussels, Belgium) (represented by J. R. García-Gallardo Gil-Fournier, E. Wouters and A. Sayagués Torres, lawyers)

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

Application for:

annulment of the Commission's decision of 29 October 2003 refusing to pay the applicant the expatriation allowance under Article 4 of Annex VII to the Staff Regulations of Officials of the European Communities and the allowances associated therewith

Operative part of the judgment:

The Court:

| 1) | Annuls the decisions of 8 April and 29 October 2003 in so far as they refuse to grant the applicant payment of the expatriation allowance laid down in Article 4(1)(a) of Annex VII to the Staff Regulations of Officials of the European Communities and payment of the installation allowance laid down in Article 5(1) of that same annex; |
| --- | --- |

1)

Annuls the decisions of 8 April and 29 October 2003 in so far as they refuse to grant the applicant payment of the expatriation allowance laid down in Article 4(1)(a) of Annex VII to the Staff Regulations of Officials of the European Communities and payment of the installation allowance laid down in Article 5(1) of that same annex;

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

2)

Dismisses the remainder of the application;

| 3) | Orders the Commission to bear all the costs. |
| --- | --- |

3)

Orders the Commission to bear all the costs.

---

(1)  OJ C 94, 17.4.2004.

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/11 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/11

---

Judgment of the Court of First Instance of 7 September 2005 — Heinen v Commission

(Case T-181/04) (1)

(Officials - Internal competition - Oral test - Non-placement on the reserve list - Choice of language - Breach of the notice of competition - Equality of treatment)

(2005/C 257/20)

Language of the case: French

Parties:

Applicant(s): Nathalie Heinen (Ottignies, Belgium) (represented by S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

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

Application for:

Annulment of the decision of the Selection Board for internal competition COM/PB/02 awarding the applicant, for the oral test, insufficient marks for her to be placed on the reserve list for recruitment.

Operative part of the judgment:

The Court:

| 1) | Dismisses the action. |
| --- | --- |

1)

Dismisses the action.

| 2) | Orders the Commission to pay the costs. |
| --- | --- |

2)

Orders the Commission to pay the costs.

---

(1)  OJ C 190 of 24.7.2004.

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/11 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/11

---

Judgment of the Court of First Instance of 12 September 2005 — Dionyssopoulou v Council

(Case T-320/04) (1)

(Officials - Invalidity pension - Correction coefficient - Meaning of ‘residence’ - United Kingdom)

(2005/C 257/21)

Language of the case: French

Parties:

Applicant: Triantafyllia Dionyssopoulou (represented by: C. Quackels and M.-C. Gautier, lawyers).

Defendant: Council of the European Union (represented by: M. Sims and I. Diez Parra, acting as Agents).

Application for:

Annulment of the Council's decision of 12 December 2003 applying the correction coefficient for Greece to the applicant's pension, and damages.

Operative part of the judgment:

The Court:

| 1) | Dismisses the action. |
| --- | --- |

1)

Dismisses the action.

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

2)

Orders both parties to bear their own costs.

---

(1)  OJ C 273 of 6.11.2004.

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/11 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/11

---

Order of the Court of First Instance of 22 July 2005 — Polyelectrolyte Producers Group v Council and Commission

(Case T-376/04) (1)

(Action for annulment - Council decision determining the Community's position - Decision of the EEA Joint Committee - Objection of inadmissibility - Challengeable act - Standing to bring proceedings - Inadmissibility)

(2005/C 257/22)

Language of the case: English

Parties:

Applicant(s): Polyelectrolyte Producers Group (Brussels, Belgium) (represented by K. van Maldegem and C. Mereu, lawyers)

Defendant(s): Council of the European Union (represented by J.-P. Hix and B. Hoff-Nielsen, as Agents) and Commission of the European Communities (represented by J. Forman and M. Wilderspin, Agents)

Application for:

Annulment of the defendants' acts permitting the Kingdom of Norway to apply more stringent concentration limits for acrylamide than those applicable in the European Community and set out in Decision of the EEA Joint Committee No 59/2004 of 6 April 2004 amending Annex II (Technical regulations, standards, testing and certification) to the EEA Agreement (OJ 2004 L 277, p. 30), and annulment of the Community's position relating to that decision.

Operative part of the Order:

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

1.

The action is dismissed as inadmissible.

| 2. | The applicant is to bear its own costs and to pay those incurred by the Commission and the Council. |
| --- | --- |

2.

The applicant is to bear its own costs and to pay those incurred by the Commission and the Council.

---

(1)  OJ C 284, 20.11.2004.

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/12 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/12

---

Order of the President of the Court of First Instance of 23 May 2005: Dimos Ano Liosion and Others v Commission

(Case T-85/05 R)

(Interim measures - Cohesion Fund - Co-financing decision - Project for hygienic infill of domestic waste - Admissibility - Prima facie case - Urgency - None)

(2005/C 257/23)

Language of the case: Greek

Parties:

Applicants: Dimos Ano Liosion and Others (Greece) (represented by: G. Kalavros, lawyer).

Defendant: Commission of the European Communities (represented by: D. Triantafyllou and L. Flynn, acting as Agents).

Application for:

Suspension of operation of Commission Decision E(2004) 5522 of 21 December 2004 concerning the grant of assistance by the Cohesion Fund for the construction of Phase 1 of the second landfill site for waste (XYTA) in Western Attica, at Skalistiri in the Deme of Phylis, Attica (Greece)

Operative part of the order:

| 1) | The application is dismissed. |
| --- | --- |

1)

The application is dismissed.

| 2) | The costs are reserved. |
| --- | --- |

2)

The costs are reserved.

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/12 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/12

---

Action brought on 25 July 2005 — Friedrich Weber v Commission

(Case T-290/05)

(2005/C 257/24)

Language of the case: German

Parties:

Applicant: Friedrich Weber (Cologne, Germany) (represented by: W. Declair, lawyer)

Defendant: Commission of the European Communities

Form of order sought:

The applicant claims that the Court should:

| — | vary the defendant's decision of 27 May 2005 so that it is obligated to grant the applicant access, in accordance with its letters of 23 April 2005 and 27 April 2005, to documents in connection with the State aid proceedings E 3/2005 concerning the financing of public-law broadcasting bodies pursuant to Regulation (EC) No 1049/2001. |
| --- | --- |

—

vary the defendant's decision of 27 May 2005 so that it is obligated to grant the applicant access, in accordance with its letters of 23 April 2005 and 27 April 2005, to documents in connection with the State aid proceedings E 3/2005 concerning the financing of public-law broadcasting bodies pursuant to Regulation (EC) No 1049/2001.

Pleas in law and main arguments:

In the contested decision, the Commission refused the applicant's request for access to documents in connection with the State aid proceedings E 3/2005 concerning the financing of public-law broadcasting bodies with reference to the third indent of Article 4(2) and the first subparagraph of Article 4(3) of the openness regulation. (1)

The applicant claims that there is a public interest in disclosure of the documents at issue.

---

(1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145 of 31.05.2001 p. 43).

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/13 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/13

---

Action brought on 28 July 2005 — Luigi Marcuccio v Commission of the European Communities

(Case T-296/05)

(2005/C 257/25)

Language of the case: Italian

Parties:

Applicant: Luigi Marcuccio (Trifase/Italy) [represented by: Alessandro Distante, lawyer]

Defendant: Commission of the European Communities

Form of order sought:

The applicant claims that the Court should:

| — | annul the decision rejecting the application addressed by the applicant to the Joint Sickness Insurance Scheme; |
| --- | --- |

—

annul the decision rejecting the application addressed by the applicant to the Joint Sickness Insurance Scheme;

| — | order the defendant to pay to the applicant as reimbursement of the additional sum of up to 100 % of the medical expenses borne by him, and which he seeks to have reimbursed by the Joint Scheme, in the period 4 January 2002 to 19 May 2004, that being the difference between what has already been paid to the applicant by way of reimbursement of medical expenses and 100 % of those expenses, i.e. the sum of EUR 2 572.32, or whatever lesser of greater sum the Court may see fit to award under this head; |
| --- | --- |

—

order the defendant to pay to the applicant as reimbursement of the additional sum of up to 100 % of the medical expenses borne by him, and which he seeks to have reimbursed by the Joint Scheme, in the period 4 January 2002 to 19 May 2004, that being the difference between what has already been paid to the applicant by way of reimbursement of medical expenses and 100 % of those expenses, i.e. the sum of EUR 2 572.32, or whatever lesser of greater sum the Court may see fit to award under this head;

| — | order the defendant to pay the applicant statutory interest at the rate of 10 %; |
| --- | --- |

—

order the defendant to pay the applicant statutory interest at the rate of 10 %;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments:

The applicant in this case challenges the defendant's refusal to reimburse at 100 % the medical expenses he has borne.

In support of his claims, the applicant alleges infringement of Article 72 of the Staff Regulations and breach of the duty to have regard to officials' welfare and of the principle of proper administration, and a complete lack of a statement of reasons and a manifest error of assessment.

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/13 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/13

---

Action brought on 29 July 2005 by IPK International — World Tourism Marketing Consultants v Commission

(Case T-297/05)

(2005/C 257/26)

Language of the case: German

Parties:

Applicant(s): IPK International — World Tourism Marketing Consultants GmbH (Munich, Germany) (represented by H.-J. Prieß, lawyer, M. Niestedt, lawyer, and C. Pitschas, lawyer)

Defendant: Commission of the European Communities

Form of order sought:

The applicant claims that the Court should:

| — | annul the Commission's decision of 13 May 2005 (ENTR/01/Audit/RVDZ/ss D(2005) 11382) to cancel the decision to grant financial assistance to the applicant in the sum of ECU 530 000 within the framework of the ECODATA-Project of 4 August 1992 (003977/XXIII/A3 — S92/DG/ENV8/LD/kz); |
| --- | --- |

—

annul the Commission's decision of 13 May 2005 (ENTR/01/Audit/RVDZ/ss D(2005) 11382) to cancel the decision to grant financial assistance to the applicant in the sum of ECU 530 000 within the framework of the ECODATA-Project of 4 August 1992 (003977/XXIII/A3 — S92/DG/ENV8/LD/kz);

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

—

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments:

The Commission granted the applicant financial assistance in the sum of ECU 530 000 on 4 August 1992 in order to set up a database for ecological tourism in Europe. That decision was cancelled by the defendant by the contested decision of 13 May 2005.

The applicant submits that the contested decision is unlawful. The applicant states in the grounds of its complaint that the conditions for cancelling a decision have not been met, since the factors relied on by the Commission in order to justify its decision are unfounded in law and moreover it is no longer possible to cancel the decision to grant financial assistance on account of the amount of time that has elapsed. The applicant further asserts that the contested decision is in breach of the principle of good administration and the principle of the duty to state reasons pursuant to Article 253 EC. Finally, the applicant complains that there has been an infringement of the prohibition on reissuing decisions which have been declared void.

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/14 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/14

---

Action brought on 26 July 2005 — Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision/Council

(Case T-299/05)

(2005/C 257/27)

Language of the case: English

Parties:

Applicant(s): Shanghai Excell M&E Enterprise Co Ltd and Shanghai Adeptech Precision Company Limited (Shanghai, China) [represented by: R. MacLean, solicitor]

Defendant(s): Council of the European Union

Form of order sought:

| — | annul Council Regulation (EC) 692/2005 (1) of 28 April 2005, insofar as it applies to the applicant; and |
| --- | --- |

—

annul Council Regulation (EC) 692/2005 (1) of 28 April 2005, insofar as it applies to the applicant; and

| — | order the Council to pay the legal costs and expenses of the procedure. |
| --- | --- |

—

order the Council to pay the legal costs and expenses of the procedure.

Pleas in law and main arguments:

The contested regulation imposed an anti-dumping duty on the applicants' exports of retail electronic weighing scales which also applied retrospectively to imports of these products registered in accordance with Commission Regulation (EC) 1408/2004 (2). Customs authorities in the EU were also instructed to cease the registration of imports of products coming from the People's Republic of China for the applicants.

The applicants request the Court to annul this regulation. In support of their application they invoke an infringement of Article 2.7(c) para. (2) of Council Regulation (EC) 384/1996 on the grounds that the Commission rendered a determination on the issue of Market Economy Treatment for the applicants after the expiry of the three month period provided for in this article. They further invoke manifest errors of assessment relating to the determination of whether the applicants operated under market economy conditions. The applicants consider these alleged errors as violations of Article 2.A.7.(c) para. (1) of Regulation (EC) 384/1996.

The contested regulation was adopted after a ‘newcomer investigation’ in respect of the applicants. The applicants allege that in that investigation the Community institutions did not adopt the same methodology they had applied in the original investigation which led to the duty and that, therefore, Article 11 paragraph 9 of Regulation (EC) 384/1996 was also violated.

The applicants also contend that the Community institutions failed to apply the proper standards in assessing the criteria relating to normal value, export price and profit margin and that therefore Articles 2.A.7. para(A) and 2.C. para(10) of Regulation (EC) 384/1996 were violated.

Finally, the applicants contend that the contested regulation does not identify them properly in that it states incorrect addresses for both of them. They consider that a material error of fact.

---

(1)  OJ L 112, 3/5/2005, p. 42

(2)  OJ L 256, 03/08/2004, p. 8

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/14 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/14

---

Action brought on 3 August 2005 — ACEA Electrabel Produzione SpA/Commission of the European Communities

(Case T-303/95)

(2005/C 257/28)

Language of the case: Italian

Parties:

Applicant: ACEA Electrabel Produzione SpA (Rome, Italy) [represented by: Luca G. Radicati di Brozolo, Massimo Merola, Chiara Bazoli, Fabrizion D'Alessandri, lawyers]

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | annul the Commission's decision of 16 March 2005 on aid for the reduction of greenhouse gases through the use of sources of alternative energy (State aid No C 35/03), in that it classifies as State aid measures to fund the construction of a distance heating system in the district of Torrino-Mezzocammino, and in that it suspends the grant of aid until Italy has supplied evidence of repayment by ACEA of the aid declared unlawful and incompatible with Decision 2003/193/EC of 5 June 2002 on tax relief for ex-municipal undertakings; |
| --- | --- |

—

annul the Commission's decision of 16 March 2005 on aid for the reduction of greenhouse gases through the use of sources of alternative energy (State aid No C 35/03), in that it classifies as State aid measures to fund the construction of a distance heating system in the district of Torrino-Mezzocammino, and in that it suspends the grant of aid until Italy has supplied evidence of repayment by ACEA of the aid declared unlawful and incompatible with Decision 2003/193/EC of 5 June 2002 on tax relief for ex-municipal undertakings;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant in this case is a company controlled by Electrabel SA and ACEA. More precisely, it was one of three operating companies controlled by the hodling company ACEA Electrabel Holding SpA, a joint venture company created by Electrabel and ACEA in order to operate in the field of gas and electric energy.

The action concerns the decision of 16 March 2005 by which the Commission concluded the proceedings brought under Article 88(2) EC for the purpose of examining the compatibility with Community law of the funding granted by the Regione Lazion for the extension of a distance heating system in the district of Torrino-Mezzocammino, near Rome (State aid No C-35/03 — ex NN 90/2002).

The applicant requests the Court of First Instance of the European Communities to declare the decision null in so far as it classifies as State aid measures to fund the construction of a distance heating network in the district of Torrino-Mezzocammino, and in that it suspends the grant of aid until Italy has supplied evidence of repayment by ACEA of the aid declared unlawful and incompatible with Decision 2003/193/EC of 5 June 2002 on tax relief for ex-municipal undertakings (‘the Tax Relief Decision’).

The action is based in particular on the following main grounds:

| (a) | the measure in question does not constitute State aid, inasmuch as it is not capable of affecting competition, and does not on any view cause any damage to intra-Community trade. In point of fact, it exhausts its effects at local level, being intended to subsidise a project (the construction of a heating system in a quarter near Rome) that is to benefit a limited number of users in a restricted area of Italian territory, in fact, merely an overspill area for a large town; |
| --- | --- |

(a)

the measure in question does not constitute State aid, inasmuch as it is not capable of affecting competition, and does not on any view cause any damage to intra-Community trade. In point of fact, it exhausts its effects at local level, being intended to subsidise a project (the construction of a heating system in a quarter near Rome) that is to benefit a limited number of users in a restricted area of Italian territory, in fact, merely an overspill area for a large town;

| (b) | the recipient (i.e. the applicant) of that measure is not the same as the beneficiary of the aid that is the subject-matter of the Tax Relief Decision (i.e. ACEA), nor does it constitute a single economic entity with the latter, so that the order for suspension of the grant of aid appears quite unjustified; |
| --- | --- |

(b)

the recipient (i.e. the applicant) of that measure is not the same as the beneficiary of the aid that is the subject-matter of the Tax Relief Decision (i.e. ACEA), nor does it constitute a single economic entity with the latter, so that the order for suspension of the grant of aid appears quite unjustified;

| (c) | even leaving aside the error in the identification of the recipient and even if ACEA were, quod non, to be considered to be the actual recipient of the aid in question, application of the judgment in Deggendorf
   (1) would seem to be without bearing on the circumstances of this case. Specifically, the Commission has not demonstrated that there are any grounds (in particular, the cumulative effect of the previous measures together with the new measures) which, according to the principles to be drawn from that judgment, must be present if grant of the measure/aid? is to be suspended. |
| --- | --- |

(c)

even leaving aside the error in the identification of the recipient and even if ACEA were, quod non, to be considered to be the actual recipient of the aid in question, application of the judgment in Deggendorf
   (1) would seem to be without bearing on the circumstances of this case. Specifically, the Commission has not demonstrated that there are any grounds (in particular, the cumulative effect of the previous measures together with the new measures) which, according to the principles to be drawn from that judgment, must be present if grant of the measure/aid? is to be suspended.

---

(1)  Judgment in Joined Cases T-244/93 and T-486/93 TWD v Commission [1995] ECR II-2265, upheld by judgment of the Court of Justice in Case C-355/95 [1997] ECR I-2549.

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/15 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/15

---

Action brought on 4 August 2005 — Cain Cellars v OHIM

(Case T-304/05)

(2005/C 257/29)

Language in which the application was lodged: German

Parties:

Applicant: Cain Cellars, Inc. (St. Helena, United States) (represented by: W.-W. Wodrich, lawyer, and J.K.F. Albrecht, lawyer)

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

Form of order sought:

The applicant claims that the Court should:

| — | annul the decision of the defendant (First Board of Appeal) of 23 May 2005 in Case R 0975/2004-1; |
| --- | --- |

—

annul the decision of the defendant (First Board of Appeal) of 23 May 2005 in Case R 0975/2004-1;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments:

Community trade mark concerned: The figurative mark in the form of a pentagon for ‘Wine’ goods in Class 33 — Application No 3 425 121

Decision of the Examiner: Rejection of the application

Decision of the Board of Appeal: Dismissal of the applicant's appeal

Pleas in law: It is irrelevant from a legal viewpoint that the mark applied for is a geometric figure, since in respect of the role of trade marks and their capability of working as company signs, only the assessment of the average consumer who is reasonably well informed and reasonably observant and circumspect is relevant. The defendant has breached that principle of assessment in the contested decision. The figure in the form of a pentagon is unusual and striking and therefore has distinctive character and indicates the company origin. Article 7(1)(b) of Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark does not thereby preclude registration of the mark of the applicant for which protection is sought.

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/16 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/16

---

Action brought on 10 August 2005 — Italian Republic/Commission of the European Communities

(Case T-308/05)

(2005/C 257/30)

Language of the case: Italian

Parties:

Applicant: Italian Republic (represented by: Antonio Cingolo, Avvocato dello Stato)

Defendant: Commission of the European Communities

Form of order sought:

The applicant claims that the Court should:

| — | annul memorandum No 05272 of 7 June 2005 of the Regional Policy Directorate General of the European Commission — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — Italy and Malta — concerning POR Campania Ob. 1 — 2005-2006 (No CCI 1999 IT 16 1 PO 007) — Declaration of interim expenditure and request for payment; |
| --- | --- |

—

annul memorandum No 05272 of 7 June 2005 of the Regional Policy Directorate General of the European Commission — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — Italy and Malta — concerning POR Campania Ob. 1 — 2005-2006 (No CCI 1999 IT 16 1 PO 007) — Declaration of interim expenditure and request for payment;

| — | annul memorandum No 05453 of 8 June 2005 of the Regional Policy Directorate General of the European Commission — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning DOCUP Ob. 2 — Latium 2005-2006 (No CCI 2000 IT 16 2 DO 009) — Payment from the Commission different from the amount requested; |
| --- | --- |

—

annul memorandum No 05453 of 8 June 2005 of the Regional Policy Directorate General of the European Commission — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning DOCUP Ob. 2 — Latium 2005-2006 (No CCI 2000 IT 16 2 DO 009) — Payment from the Commission different from the amount requested;

| — | annul memorandum No 05726 of 17 June 2005 of the Regional Policy Directorate General of the European Commission — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning POR Apulia 2005-2006 (No CCI 1999 IT 16 PO 009) — Payment from the Commission different from the amount requested; |
| --- | --- |

—

annul memorandum No 05726 of 17 June 2005 of the Regional Policy Directorate General of the European Commission — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning POR Apulia 2005-2006 (No CCI 1999 IT 16 PO 009) — Payment from the Commission different from the amount requested;

| — | annul memorandum No 05728 of 17 June 2005 of the Regional Policy Directorate General of the European Commission — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning POR Apulia 2005-2006 (No CCI 1999 IT 16 PO 009) — Payment from the Commission different from the amount requested; |
| --- | --- |

—

annul memorandum No 05728 of 17 June 2005 of the Regional Policy Directorate General of the European Commission — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning POR Apulia 2005-2006 (No CCI 1999 IT 16 PO 009) — Payment from the Commission different from the amount requested;

| — | annul memorandum No 05952 of 17 June 2005 of the Regional Policy Directorate General of the European Commission — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning POR Apulia 2005-2006 (No CCI 1999 IT 16 PO 009) — Payment from the Commission different from the amount requested; |
| --- | --- |

—

annul memorandum No 05952 of 17 June 2005 of the Regional Policy Directorate General of the European Commission — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning POR Apulia 2005-2006 (No CCI 1999 IT 16 PO 009) — Payment from the Commission different from the amount requested;

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

—

annul all related and prior measures; and

| — | 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 the same as those relied on in Case T-345/04 Italian Republic v Commission. (1)

---

(1)  OJ C 262 of 23.10.2004, p. 55.

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/16 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/16

---

Action brought on 10 August 2005 — Microsoft/Commission

(Case T-313/05)

(2005/C 257/31)

Language of the case: English

Parties:

Applicant(s): Microsoft Corporation (Washington, USA) [represented by: J.-F. Bellis, lawyer, I. Forrester, QC]

Defendant(s): Commission of the European Communities

Form of order sought:

| — | annul the Commission Decision of 1 June 2005; |
| --- | --- |

—

annul the Commission Decision of 1 June 2005;

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

—

order the Commission to bear the costs.

Pleas in law and main arguments:

Following the Commission's Decision of 24 March 2004, contested in Case T-201/04 (1) and according to which the applicant is required to disclose specifications for certain Windows protocols in order to ensure interoperability with Windows, the Commission informed the applicant by letter of 1 June 2005 that, in its opinion, the applicant is under an obligation to permit distribution to third parties — non-licensees — in source code form of software developed by competitors on the basis of the disclosed Windows protocol specifications unless the software includes an invention by the applicant satisfying criteria of novelty and inventiveness.

The applicant contests the Commission's letter of 1 June 2005 as the applicant contends that the distribution in source code form of the software in question would grant non-licensees access to the applicant's trade secrets without giving the applicant the possibility to ensure that they are kept confidential through licensing terms as is the case for licensees.

The applicant is of the opinion that the letter of 1 June 2005 imposes an illegal deprivation of the applicant's property rights and that the Commission lacked competence to impose obligations going beyond those required by the Decision of 24 March 2004 as the Commission's letter of 1 June 2005 purports to apply this Decision.

The applicant further alleges that the letter of 1 June 2005 breaches the principle of proportionality as it goes beyond what is necessary to remedy the abuse established by the Decision of 24 March 2004.

Moreover the applicant claims that the test of novelty and inventiveness set out in the letter of 1 June 2005 breaches the principle of legal certainty as it is unclear, imprecise and very difficult to apply meaningfully in a trade secret context.

Finally, the applicant submits that the letter of 1 June 2005 contravenes principles of public international law binding on the Community because it entails a worldwide and thus extraterritorial disclosure of the applicant's property rights.

---

(1)  OJ C 179 of 10 July 2004, p. 18.

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/17 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/17

---

Action brought on 30 August 2005 — TUI AG v OHIM

(Case T-325/05)

(2005/C 257/32)

Language in which the application was lodged: German

Parties:

Applicant(s): TUI AG (Hannover, Germany) (represented by D. von Schultz)

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

Form of order sought:

The applicant claims that the Court should:

| — | annul the decision of the Fourth Board of Appeal of OHIM of 25 May 2005 in Case R 183/2004-4; |
| --- | --- |

—

annul the decision of the Fourth Board of Appeal of OHIM of 25 May 2005 in Case R 183/2004-4;

| — | require OHIM to register the trade mark ‘Fliegen zum Taxipreis’ applied for under number EU 002851681 for all services covered by the application; |
| --- | --- |

—

require OHIM to register the trade mark ‘Fliegen zum Taxipreis’ applied for under number EU 002851681 for all services covered by the application;

| — | order OHIM to pay the costs of the appeal procedure and of the present case. |
| --- | --- |

—

order OHIM to pay the costs of the appeal procedure and of the present case.

Pleas in law and main arguments:

Community trade mark concerned: Word mark ‘Fliegen zum Taxipreis’ for services in Classes 36 and 39 — application No 2 851 681.

Decision of the Examiner: Rejection of the application in respect of services in Class 39.

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

Pleas in law: Infringement of Article 7(1)(b) of Council Regulation (EC) No 40/94, as it is incorrect that the trade mark applied for has no distinctive character.

---

| 15.10.2005 | EN | Official Journal of the European Union | C 257/18 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/18

---

Action brought on 26 August 2005 — Movimondo ONLUS v Commission of the European Communities

(Case T-329/05)

(2005/C 257/33)

Language of the case: Italian

Parties:

Applicant: Movimondo ONLUS (Rome, Italy) (represented by Paolo Vitali, Giulia Verusio, Gian Michele Roberti and Alessandra Franchi, lawyers)

Defendant: Commission of the European Communities

Form of order sought:

The applicant's principal claim is that the Court should:

| — | declare that the European Commission (ECHO department) has failed to perform its contractual undertakings as regards its contractual obligations under the Grant Agreements concluded within the ambit of Framework Partnership Agreement No 3-134 and in consequence |
| --- | --- |

—

declare that the European Commission (ECHO department) has failed to perform its contractual undertakings as regards its contractual obligations under the Grant Agreements concluded within the ambit of Framework Partnership Agreement No 3-134 and in consequence

| — | order the European Commission to pay Movimondo the following sums:






  — | EUR 36 500,51 relating to the MAGUINDANAO project: ECHO/PHL/210/2003/02003, together with default interest running from 25 September 2004; |
| --- | --- | --- |

—

order the European Commission to pay Movimondo the following sums:

—

EUR 36 500,51 relating to the MAGUINDANAO project: ECHO/PHL/210/2003/02003, together with default interest running from 25 September 2004;

| — | EUR 150 000,00 relating to the ECHO 9 PALESTINE project: ECHO/TPS/210/2003/08018, together with default interest running from 16 September 2004; |
| --- | --- |

—

EUR 150 000,00 relating to the ECHO 9 PALESTINE project: ECHO/TPS/210/2003/08018, together with default interest running from 16 September 2004;

| — | EUR 52 500,00 relating to the DIPECHO INDIA project: ECHO/TPS/210/2003/03005, together with default interest running from 24 March 2005; |
| --- | --- |

—

EUR 52 500,00 relating to the DIPECHO INDIA project: ECHO/TPS/210/2003/03005, together with default interest running from 24 March 2005;

| — | EUR 50 865,96 relating to the ECHO LEBANON project: ECHO/TPS/210/2003/08020, together with default interest running from 15 August 2005; |
| --- | --- |

—

EUR 50 865,96 relating to the ECHO LEBANON project: ECHO/TPS/210/2003/08020, together with default interest running from 15 August 2005;

| — | EUR 119 485,70 relating to the ECHO BAJO YUNA project: ECHO/CR/BUD/2004/01006, together with default interest running from 12 June 2005; |
| --- | --- |

—

EUR 119 485,70 relating to the ECHO BAJO YUNA project: ECHO/CR/BUD/2004/01006, together with default interest running from 12 June 2005;

| — | EUR 28 500,00 payable for the ECHO RUNDU II project: ECHO/AGO/BUD/2004/01018, together with default interest running from 13 July 2005; |
| --- | --- |

—

EUR 28 500,00 payable for the ECHO RUNDU II project: ECHO/AGO/BUD/2004/01018, together with default interest running from 13 July 2005;

| — | EUR 70 085 relating to the ECHO SAMANA' project: ECHO/DOM/BUD/2004/01001, together with default interest running from 16 May 2005; |
| --- | --- |

—

EUR 70 085 relating to the ECHO SAMANA' project: ECHO/DOM/BUD/2004/01001, together with default interest running from 16 May 2005;

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

—

order the European Commission to pay the costs.

The applicant's subsidiary claim is that the Court should:

| — | annul the decision suspending the time-limits for payment contained in the letter of 17 June 2005 of Director General Antonio Cavaco, Humanitarian Aid Office, ECHO 3, Ref. D 6613, concerning the ‘injunction to pay outstanding payments due to Movimondo’ and, consequently, order the European Commission to pay Movimondo the sums referred to above; |
| --- | --- |

—

annul the decision suspending the time-limits for payment contained in the letter of 17 June 2005 of Director General Antonio Cavaco, Humanitarian Aid Office, ECHO 3, Ref. D 6613, concerning the ‘injunction to pay outstanding payments due to Movimondo’ and, consequently, order the European Commission to pay Movimondo the sums referred to above;

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

—

order the European Commission to pay the costs.

Pleas in law and main arguments:

In this action the principal claim of the applicant organisation — an international cooperation and solidarity NGO — pursuant to Article 238 EC, is that the European Commission should be ordered to pay the sums due under contractual obligations arising out of several Grant Agreements concluded within the ambit of Framework Partnership Agreement No 3-134, in force from 1 December 2003, and concerning the financing by the European Commission of urgent humanitarian actions carried out in full and properly accounted for.

Its subsidiary claim pursuant to the fourth paragraph of Article 230 EC is for annulment of the decision suspending the time-limits for payment contained in the letter of 17 June 2005 of Director General Antonio Cavaco, Humanitarian Aid Office, ECHO 3, Ref. D 6613, concerning the ‘injunction to pay outstanding payments due to Movimondo’ and the decision of 27 July 2005 of Director General Antonio Cavaco, Humanitarian Aid Office ECHO 3, Ref. D 8136.

In support of its application for annulment of the decision suspending the time-limits for payment contained in the letter of 17 June 2005, the applicant puts forward in particular three pleas in law.

In the first plea, it argues that in adopting the decision to suspend the time-limits for payment in question ECHO's staff have exercised their authority improperly, taking as the legal basis for the contested decision Article 106(4) of Regulation 2342/2002, (1) outside the specific situations and purposes provided for by that provision. In the second, it alleges failure to state the grounds of the contested decisions, contrary to Article 253 EC, and to Article 106(4) of Regulation No 2342/2002; last, in its third plea, it alleges a procedural infringement of Article 106(4) of Regulation No 2342/2002, ECHO's staff not having informed Movimondo directly of the suspension order.

In support of its action for annulment of the decision of 27 July 2005, however, the applicant puts forward four pleas in law.

In the first, the applicant alleges failure to state the grounds of the contested decision; in the second, it challenges the breach of the general principle of presumption of innocence, and breach of the right to a fair hearing, in that the ECHO staff did not take steps to inform it of the initiatives they meant to take regarding it, nor did they give it the opportunity to be heard in that context. In the third plea, it challenges the breach of Article 106(4) of Regulation 2342/2002 and also alleges misuse of powers by ECHO staff. Last, in the fourth plea, the applicant alleges breach of the principle of protection of legitimate expectations.

---

(1)  Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ L 357 of 31 December 2002).

---

III Notices

| 15.10.2005 | EN | Official Journal of the European Union | C 257/20 |
| --- | --- | --- | --- |

15.10.2005

EN

Official Journal of the European Union

C 257/20

---

(2005/C 257/34)

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

OJ C 243, 1.10.2005

Past publications

OJ C 229, 17.9.2005

OJ C 217, 3.9.2005

OJ C 205, 20.8.2005

OJ C 193, 6.8.2005

OJ C 182, 23.7.2005

OJ C 171, 9.7.2005

These texts are available on:

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

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

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

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

---