# Official Journal C 281/2006

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 281 |
| | |
| English edition | Information and Notices | Volume 4918 November 2006 |

ISSN 1725-2423

Official Journal

of the European Union

C 281

English edition

Information and Notices

Volume 4918 November 2006

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| Notice No | Contents | page |
| --- | --- | --- |
| | I   Information |
| | Court of Justice |
| | COURT OF JUSTICE |
| 2006/C 281/1 | Case C-53/04: Judgment of the Court (Second Chamber) of 7 September 2006 (reference for a preliminary ruling from the Tribunale di Genova — Italy) — Cristiano Marrosu, Gianluca Sardino v Azienda Ospedaliera Ospedale San Martino di Genova e Cliniche Universitarie Convenzionate (Directive 1999/70/EC — Clauses 1(b) and 5 of the framework agreement on fixed-term work — Establishment of employment relationships of indefinite duration resulting from infringement of the rules governing successive fixed-term contracts — Possible derogation in respect of employment contracts in the public sector) | 1 |
| 2006/C 281/2 | Joined Cases C-123/04 and C-124/04: Judgment of the Court (Grand Chamber) of 12 September 2006 (references for a preliminary ruling from the Oberlandesgericht Oldenburg — Germany) — Industrias Nucleares do Brasil SA, Siemens AG v UBS AG (C-123/04), Texas Utilities Electric Corporation (C-124/04) (EAEC Treaty — Supplies — Property ownership — Enrichment of uranium on the territory of the Community by a national of a third State) | 1 |
| 2006/C 281/3 | Case C-145/04: Judgment of the Court (Grand Chamber) of 12 September 2006 — Kingdom of Spain v United Kingdom of Great Britain and Northern Ireland (European Parliament — Elections — Right to vote — Commonwealth citizens residing in Gibraltar and not having citizenship of the Union) | 2 |
| 2006/C 281/4 | Joined Cases C-158/04 and C-159/04: Judgment of the Court (First Chamber) of 14 September 2006 (reference for a preliminary ruling from the Diikitiko Protodikio Ioanninon — Greece) — Alfa Vita Vassilopoulos AE, formerly Trofo Super-Markets AE v Elliniko Dimosio, Nomarkhiaki Aftodiikisi Ioanninon (C-158/04), Carrefour Marinopoulos AE v Elliniko Dimosio, Nomarkhiaki Aftodiikisi Ioanninon (C-159/04) (Free movement of goods — Article 28 EC — Quantitative restrictions — Measures having equivalent effect — Marketing of frozen bake-off products) | 3 |
| 2006/C 281/5 | Case C-167/04 P: Judgment of the Court (Second Chamber) of 21 September 2006 — JCB Service v Commission of the European Communities, (Appeals — Cartels — Article 81 EC — Distribution agreements — Concerted practices — Notification — Form A/B — Application for exemption — Rejection — Duration of the assessment of the notification procedure — Rights of the defence — Presumption of innocence — Complaint — Infringement — General prohibition on passive sales — Limitation of the sources of supply — New pleas in law — Fines — Guidelines — Gravity of the infringement — Duration — Attenuating circumstances — Cross-appeal — Aggravating circumstances) | 3 |
| 2006/C 281/6 | Case C-168/04: Judgment of the Court (First Chamber) of 21 September 2006 — Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Article 49 EC — Freedom to provide services — Undertaking employing workers who are not nationals of a Member State — Undertaking providing services in another Member State — EU Posting Confirmation) | 4 |
| 2006/C 281/7 | Joined Cases C-181/04 to C-183/04: Judgment of the Court (Second Chamber) of 14 September 2006 (references for a preliminary ruling from the Simvoulio tis Epikratias — Greece) — Elmeka NE v Ipourgos Ikonomikon (Sixth VAT Directive — Exemptions — Article 15(4)(a), (5) and (8) — Exemption for the chartering of sea-going vessels — Scope) | 4 |
| 2006/C 281/8 | Case C-196/04: Judgment of the Court (Grand Chamber) of 12 September 2006 (reference for a preliminary ruling from the Special Commissioners, London — United Kingdom) — Cadbury Schweppes plc, Cadbury Schweppes Overseas Ltd v Commissioners of Inland Revenue (Freedom of establishment — Law on controlled foreign companies — Inclusion of the profits of controlled foreign companies in the tax base of the parent company) | 5 |
| 2006/C 281/9 | Case C-300/04: Judgment of the Court (Grand Chamber) of 12 September 2006 (reference for a preliminary ruling from the Raad van State (Netherlands)) — M.G. Eman, O.B. Sevinger v College van burgemeester en wethouders van Den Haag (European Parliament — Elections — Right to vote — Requirements of residence in the Netherlands for Netherlands citizens of Aruba — Citizenship of the Union) | 5 |
| 2006/C 281/0 | Case C-310/04: Judgment of the Court (Second Chamber) of 7 September 2006 — Kingdom of Spain v Council of the European Union (Actions for annulment — Agriculture — Chapter 10a of Title IV of Regulation (EC) No 1782/2003, inserted by Article 1(20) of Regulation (EC) No 864/2004 — Amendment of the support scheme for cotton — Condition that the area is maintained at least until the boll opening — Compliance with Protocol 4 on cotton annexed to the Act of Accession of the Hellenic Republic to the European Communities — Concept of production aid — Obligation to state reasons — Misuse of powers — General principles of proportionality and protection of legitimate expectations) | 6 |
| 2006/C 281/1 | Case C-353/04: Judgment of the Court (First Chamber) of 7 September 2006 (Reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Nowaco Germany GmbH v Hauptzollamt Hamburg-Jonas (Regulations (EEC) Nos 1538/91 and 3665/87 — Community Customs Code — Export refunds — Conditions for granting — Sound and fair marketable quality — Customs procedure — Export declaration — Physical check — Sample — Tolerated number of defective units — Uniform quality — Rights and obligations of the exporter and of the customs authority — Poultrymeat) | 7 |
| 2006/C 281/2 | Case C-356/04: Judgment of the Court (Grand Chamber) of 19 September 2006 (reference for a preliminary ruling from the Rechtbank van Koophandel te Brussel, Belgium) — Lidl Belgium GmbH & Co KG v Etablissementen Franz Colruyt NV (Directives 84/450/EEC and 97/55/EC — Misleading advertising — Comparative advertising — Conditions under which comparative advertising is permitted — Comparison of the general level of the prices charged by chains of stores — Comparison of the prices of a selection of products) | 7 |
| 2006/C 281/3 | Case C-386/04: Judgment of the Court (Third Chamber) of 14 September 2006 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Centro di Musicologia Walter Stauffer v Finanzamt München für Körperschaften (Free movement of capital — Corporation tax — Exemption of rental income — Residence qualification — Charitable foundation governed by private law) | 9 |
| 2006/C 281/4 | Joined Cases C-392/04 and C-422/04: Judgment of the Court (Grand Chamber) of 19 September 2006 (references for a preliminary ruling from the Bundesverwaltungsgericht, Germany) — i-21 Germany GmbH and Arcor AG & Co. KG v Bundesrepublik Deutschland (Telecommunication services — Directive 97/13/EC — Article 11(1) — Fees and charges for individual licences — Article 10 EC — Primacy of Community law — Legal certainty — Final administrative decision) | 9 |
| 2006/C 281/5 | Case C-479/04: Judgment of the Court (Grand Chamber) of 12 September 2006 (reference for a preliminary ruling from the Østre Landsret (Denmark)) — Laserdisken ApS v Kulturministeriet (Directive 2001/29/EC — Harmonisation of certain aspects of copyright and related rights in the information society — Article 4 — Distribution rights — Rule of exhaustion — Legal basis — International agreements — Competition policy — Principle of proportionality — Freedom of expression — Principle of equal treatment — Articles 151 EC and 153 EC) | 10 |
| 2006/C 281/6 | Case C-496/04: Judgment of the Court (First Chamber) of 14 September 2006 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven — Netherlands) –J. Slob v Productschap Zuivel (Milk and milk products — Direct sales — Reference quantities — Overruns — Additional levy on milk — Obligation on producers to keep stock accounts — Article 7(1) and (3) of Regulation (EEC) No 536/93 — Supplementary national measures — Competence of the Member States) | 10 |
| 2006/C 281/7 | Case C-506/04: Judgment of the Court (Grand Chamber) of 19 September 2006 (reference for a preliminary ruling from the Cour administrative, Luxembourg) — Graham J. Wilson v Ordre des avocats du barreau de Luxembourg (Freedom of establishment — Directive 98/5/EC — Practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained — Conditions for registration with the competent authority in the host Member State — Prior examination of knowledge of the languages of the host Member State — Remedy before a court or tribunal in accordance with domestic law) | 11 |
| 2006/C 281/8 | Case C-526/04: Judgment of the Court (Second Chamber) of 7 September 2006 (reference for a preliminary ruling from the Cour de cassation — France) — Laboratoires Boiron SA v Union de recouvrement des cotisations de sécurité sociale et d'allocations familiales (Urssaf) de Lyon, assuming the rights and obligations of the Agence centrale des organismes de sécurité sociale (ACOSS), (State aid — Articles 87 and 88(3) CE — Tax on direct sales of medicines — Applicable to pharmaceutical laboratories rather than wholesale distributors — Prohibition on implementing a non-notified aid measure — Possibility of pleading that an aid measure is unlawful in order to obtain reimbursement of a charge — Compensation for discharging public service obligations imposed on wholesale distributors — Burden of proof in relation to overcompensation — Detailed rules laid down by national law — Prohibition on making reimbursement of a charge practically impossible or excessively difficult) | 12 |
| 2006/C 281/9 | Case C-72/05: Judgment of the Court (First Chamber) of 14 September 2006 (reference for a preliminary ruling from the Finanzgericht München, Germany) — Hausgemeinschaft Jörg und Stefanie Wollny v Finanzamt Landshut (Sixth VAT Directive — Article 11A(1)(c) — Use of property forming part of the assets of a business for private purposes by a taxable person — Treatment of that use as a supply of services for consideration — Determination of the taxable amount — Definition of full cost to the taxable person of providing those services) | 12 |
| 2006/C 281/0 | Case C-82/05: Judgment of the Court (First Chamber) of 14 September 2006 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Free movement of goods — Article 28 EC — Quantitative restrictions — Measures having equivalent effect — Marketing of frozen bakery products) | 13 |
| 2006/C 281/1 | Case C-138/05: Judgment of the Court (Second Chamber) of 14 September 2006 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven — Netherlands ) — Stichting Zuid-Hollandse Milieufederatie v Minister van Landbouw, Natuur en Voedselkwaliteit (Authorisation for the placing of plant protection and biocidal products on the market — Directive 91/414/EEC — Article 8 — Directive 98/8/EC — Article 16 — Power of Member States during the transitional period) | 13 |
| 2006/C 281/2 | Case C-193/05: Judgment of the Court (Grand Chamber) of 19 September 2006 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Freedom of establishment — Directive 98/5/EC — Practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained — Prior examination of knowledge of the languages of the host Member State — Prohibition on being a person authorised to accept service (domiciliataire) on behalf of companies — Requirement to produce each year the certificate of registration with the competent authority of the home Member State) | 14 |
| 2006/C 281/3 | Case C-228/05: Judgment of the Court (Third Chamber) of 14 September 2006 (reference for a preliminary ruling from the Commissione tributaria di primo grado di Trento — Italy) — Stradasfalti Srl v Agenzia delle Entrate — Ufficio di Trento (Sixth VAT Directive — Articles 17(7) and 29 — Right to deduct input VAT) | 15 |
| 2006/C 281/4 | Case C-244/05: Judgment of the Court (Second Chamber) of 14 September 2006 (reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof — Germany) — Bund Naturschutz in Bayern eV, Johann Märkl, Ludwig Neumair, Matthias Maier, Josef Hörmann, Christine Hörmann, Albert Hörmann, Maria Rimpfl, Georg Rimpfl, Eva Rimpfl, Karl Kressierer, Magdelena Kressierer, Anton Wastl, Amalie Wastl, Richard Westenthanner, Barbara Westenthanner, Angelika Graubner-Riedelsheimer, Michael Graubner, Wolfram Graubner, Sylvia Stracke, Eva Maria Thiel, Friederike Nischwitz, Georg Daller v Freistaat Bayern (Conservation of natural habitats and of wild fauna and flora — Directive 92/43/EEC — Protection regime before the inclusion of a habitat in the list of sites of Community importance) | 16 |
| 2006/C 281/5 | Case C-417/05 P: Judgment of the Court (Second Chamber) of 14 September 2006 — Commission of the European Communities v Maria Dolores Fernández Gómez (Appeals — Temporary staff — Article 2(a) of the CEOS — Period completed within the Commission as a national expert on secondment — Application for annulment — Admissibility — Request under Article 90 (1) of the Staff Regulations — Definition — Measure adversely affecting an official) | 16 |
| 2006/C 281/6 | Case C-100/06: Judgment of the Court (Fourth Chamber) of 21 September 2006 — Commission of the European Communities v Grand-Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2003/66/EC — Energy labelling of household electric refrigerators, freezers and their combinations — Failure to transpose within the prescribed period) | 17 |
| 2006/C 281/7 | Case C-331/06: Reference for a preliminary ruling from the Rechtbank Amsterdam (Netherlands) lodged on 31 July 2006 — K.D. Chuck v Raad van bestuur van de Sociale Verzekeringsbank | 17 |
| 2006/C 281/8 | Case C-337/06: Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 7 August 2006 — Bayerischer Rundfunk, Deutschland Radio, Hessischer Rundfunk, Mitteldeutscher Rundfunk, Norddeutscher Rundfunk, Radio Bremen, Rundfunk Berlin-Brandenburg, Saarländischer Rundfunk, Südwestrundfunk, Westdeutscher Rundfunk, Zweites Deutsches Fernsehen v GEWA, Gesellschaft für Gebäudereinigung und Wartung mbH | 18 |
| 2006/C 281/9 | Case C-343/06: Reference for a preliminary ruling from the Verwaltungsgericht Chemnitz (Germany) lodged on 8 August 2006 — Peter Funk v Stadt Chemnitz | 18 |
| 2006/C 281/0 | Case C-345/06: Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat im Land Niederösterreich (Austria) lodged on 10 August 2006 — Gottfried Heinrich | 19 |
| 2006/C 281/1 | Case C-347/06: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale di Brescia (Italy) lodged on 17 August 2006 — ASM Brescia S.p.A. v Comune di Rodengo Saiano | 19 |
| 2006/C 281/2 | Case C-349/06: Reference for a preliminary ruling from the Verwaltungsgericht Darmstadt (Germany) lodged on 21 August 2006 — Murat Polat v Stadt Rüsselsheim | 20 |
| 2006/C 281/3 | Case C-350/06: Reference for a preliminary ruling from the Landesarbeitsgericht Düsseldorf (Germany) lodged on 21 August 2006 — Gerhard Schultz-Hoff v Deutsche Rentenversicherung Bund | 21 |
| 2006/C 281/4 | Case C-352/06: Reference for a preliminary ruling from the Finanzgericht Köln lodged on 25 August 2006 — Brigitte Bosmann v Bundesagentur für Arbeit, Familienkasse Aachen | 21 |
| 2006/C 281/5 | Case C-353/06: Reference for a preliminary ruling from the Amtsgericht Flensburg (Germany) lodged on 28 August 2006 — in the Registry Office case Stefan Grunkin and Dorothee Regina Paul, other parties to the proceedings: Leonhard Matthias Grunkin-Paul and Standesamt Niebüll | 22 |
| 2006/C 281/6 | Case C-357/06: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 30 August 2006 — Frigerio Luigi & C. S.n.c. v Comune di Triuggio | 22 |
| 2006/C 281/7 | Case C-365/06: Action brought on 7 September 2006 — Commission of the European Communities v Italian Republic | 23 |
| 2006/C 281/8 | Case C-366/06: Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 8 September 2006 — DNA Verkot Oy | 24 |
| 2006/C 281/9 | Case C-368/06: Reference for a preliminary ruling from the Administrative Court, Lyon lodged on 8 September 2006 — CEDILAC v Minister for the Economy, Finance and Industry | 25 |
| 2006/C 281/0 | Case C-373/06 P: Appeal brought on 13 September 2006 by Thomas Faherty against the judgment of the Court of First Instance (First Chamber) delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03: Cathal Boyle and others v Commission of the European Communities | 25 |
| 2006/C 281/1 | Case C-379/06 P: Appeal brought on 14 September 2006 by Larry Murphy against the judgment of the Court of First Instance (First Chamber) delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03: Cathal Boyle and others v Commission of the European Communities | 26 |
| 2006/C 281/2 | Case C-397/06: Action brought on 22 September 2006 — Commission of the European Communities v Republic of Estonia | 26 |
| 2006/C 281/3 | Case C-407/06: Action brought on 3 October 2006 — Commission of the European Communities v Kingdom of Belgium | 27 |
| 2006/C 281/4 | Case C-416/05: Order of the President of the Court of 14 July 2006 — Commission of the European Communities v Grand Duchy of Luxembourg | 27 |
| | COURT OF FIRST INSTANCE |
| 2006/C 281/5 | Joined Cases T-217/99, T-321/00 and T-222/01: Judgment of the Court of First Instance of 13 September 2006 — Sinaga v Commission (Sugar — Poseima Programme — Regulation (EEC) No 1600/92 — Sugar forecast supply balance for the Azores — Action for annulment — Admissibility — Definition of traditional shipment to the rest of the Community — Statement of reasons — Compliance with essential procedural requirements) | 28 |
| 2006/C 281/6 | Case T-166/01: Judgment of the Court of First Instance of 19 September 2006 — Lucchini SpA v Commission of the European Communities (ECSC — State aid — Environmental aid — Aid by Italy in favour of the Lucchini steel company — Refusal to authorise the proposed aid — Applicable legal framework — Eligibility of the notified investments as aid for environmental protection — Conditions governing the compatibility of aid with the common market — Statement of reasons) | 28 |
| 2006/C 281/7 | Case T-226/01: Judgment of the Court of First Instance of 13 September 2006 — CAS Succhi di Frutta SpA v Commission (Non-contractual liability — Tendering procedure — Payment in kind — Damage suffered on the market in question due to the payment in kind — Causal link) | 29 |
| 2006/C 281/8 | Case T-210/02: Judgment of the Court of First Instance of 13 September 2006 — British Aggregates v Commission (State aid — Environmental tax on aggregates in the United Kingdom — Commission Decision not to raise objections — Action for annulment — Admissibility — Person individually concerned — Selective character — Obligation to state adequate reasons — Diligent and impartial examination) | 29 |
| 2006/C 281/9 | Case T-300/03: Judgment of the Court of First Instance of 4 October 2006 — Moser Baer India v Council (Anti-subsidy investigations — Recordable compact discs originating in India — Calculation of the amount of the subsidy — Determination of injury — Causal link — Rights of the defence) | 30 |
| 2006/C 281/0 | Case T-115/04: Judgment of the Court of First Instance of 14 September 2006 — Laroche v Commission (Community officials — Career Development Review — Appraisal period 2001/2002 — Decision to close — Time-limit for challenge — Calculation) | 30 |
| 2006/C 281/1 | Case T-119/04: Judgment of the Court of First Instance of 14 September 2006 — Rossi Ferreras v Commission (Officials — Career development report — Application for annulment — Assessment period 2001-2002 — Opinion of previous immediate superior — Failure of assessor to take into account — Claim for compensation — Inadmissibility) | 30 |
| 2006/C 281/2 | Case T-168/04: Judgment of the Court of First Instance of 7 September 2006 — L & D v OHIM — Sämann (Aire Limpio) (Community trade mark — Opposition proceedings — Earlier figurative marks representing a fir tree including, in certain cases, verbal elements — Application for figurative mark containing the verbal element Aire Limpio — Likelihood of confusion — Article 8(1)(b) and Article 73 of Regulation (EC) No 40/94) | 31 |
| 2006/C 281/3 | Case T-188/04: Judgment of the Court of First Instance of 4 October 2006 — Freixenet v OHIM (Shape of a frosted matt black bottle) (Community trade mark — Shape of a frosted matt black bottle — Absolute ground of refusal — Article 7(1)(b) of Regulation (EC) No 40/94 — Lack of distinctive character — Infringement of the rights of the defence — Article 73 of Regulation No 40/94) | 31 |
| 2006/C 281/4 | Case T-190/04: Judgment of the Court of First Instance of 4 October 2006 — Freixenet v OHIM (Shape of a frosted white bottle) (Community trade mark — Shape of a frosted white bottle — Absolute ground of refusal — Article 7(1)(b) of Regulation (EC) No 40/94 — Lack of distinctive character — Infringement of the rights of the defence — Article 73 of Regulation No 40/94) | 32 |
| 2006/C 281/5 | Case T-191/04: Judgment of the Court of First Instance of 13 September 2006 — MIP METRO v OHIM Tesco Stores (METRO) (Community trade mark — Opposition proceedings — Application for a figurative mark consisting of the word mark METRO — Earlier national word mark METRO — Expiry of protection of earlier national trade mark) | 32 |
| 2006/C 281/6 | Case T-193/04: Judgment of the Court of First Instance of 4 October 2006 — Tillack v Commission (Investigation by the European Anti-Fraud Office (OLAF) into the publication of confidential information — Suspicions of bribery and breach of professional secrecy — Communication to national judicial authorities of information relating to situations liable to lead to criminal proceedings — Search of the home and office of a journalist — Action for annulment — Admissibility — Action for damages — Causal link — Sufficiently serious breach) | 33 |
| 2006/C 281/7 | Joined Cases T-304/04 and T-316/04: Judgment of the Court of First Instance of 6 September 2006 — Italy and Wam v Commission (State aid — Loans at reduced rates intended to make it possible to become established in certain non-member countries — Effect on trade between Member States and distortion of competition — Statement of reasons) | 33 |
| 2006/C 281/8 | Case T-6/05: Judgment of the Court of First Instance of 6 September 2006 — DEF-TEC Defense Technology v OHIM — Defense Technology (FIRST DEFENSE AEROSOL PEPPER PROJECTOR) (Community trade mark — Opposition proceedings — Application for figurative mark FIRST DEFENSE AEROSOL PEPPER PROJECTOR — Relative ground for refusal — Article 8(3) of Regulation (EC) No 40/94 — Existence of trade mark proprietor's consent) | 34 |
| 2006/C 281/9 | Case T-96/05: Judgment of the Court of First Instance of 4 October 2006 — Monte di Massima v OHIM — Höfferle Internationale (Valle della Luna) (Community trade mark — Opposition procedure — Application for figurative Community trade mark Valle della Luna — Earlier national figurative mark VALLE DE LA LUNA — Proof of use of the earlier mark — Article 15(2)(a), and Article 43(2) and (3) of Regulation (EC) No 40/94) | 34 |
| 2006/C 281/0 | Case T-133/05: Judgment of the Court of First Instance of 7 September 2006 — Meric v OHIM — Arbora & Ausonia (PAM-PIM'S BABY-PROP) (Community trade mark — Opposition proceedings — Earlier national figurative and word marks PAM-PAM — Application for Community word mark PAM-PIM'S BABY-PROP — Relative ground for refusal — Article 8(1)(b) of Regulation (EC) No 40/94) | 35 |
| 2006/C 281/1 | Case T-34/05: Order of the Court of First Instance of 6 September 2006 — Bayer CropScience and Others v Commission (Plant protection products — Active substance endosulfan — Reexamination of authorisation for placing products on the market — Action for failure to act — No need to adjudicate) | 35 |
| 2006/C 281/2 | Case T-148/05: Order of the Court of First Instance of 5 September 2006 — Comunidad autónoma de Madrid and Mintra v Commission (Provision of data relating to the excessive deficit procedure — Regulation (EC) No 3605/93 — European system of accounts 1995 (ESA 95) — Regulation (EC) No 2223/96 — Letter of the Statistical Office of the European Communities (Eurostat) — Action for annulment — Act against which proceedings can be brought — Inadmissibility) | 36 |
| 2006/C 281/3 | Case T-242/05: Order of the Court of First Instance of 5 September 2006 — AEPI v Commission (Copyright and related rights — Proceedings for a declaration of failure to fulfil obligations — Closure of procedure on a complaint submitted by an individual — Action for annulment — Inadmissibility) | 36 |
| 2006/C 281/4 | Case T-350/05: Order of the Court of First Instance of 5 September 2006 — Finland v Commission (Preliminary issues — Objection of inadmissibility — Act without binding legal effect — Own resources of the European Communities — Infringement procedure — Default interest provided for in Article 11 of Regulation (EC, Euratom) No 1150/2000 — Negotiation of an agreement on a conditional payment) | 37 |
| 2006/C 281/5 | Case T-224/06: Action brought on 22 August 2006 — Otto v OHIM — L'Altra Moda (l'Altra Moda) | 37 |
| 2006/C 281/6 | Case T-250/06 P: Appeal brought on 11 September 2006 by Ott and Others against the order of 30 June 2006 by the Civil Service Tribubal in Case F-87/05 Ott and Others v Commission | 38 |
| 2006/C 281/7 | Case T-252/06 P: Appeal brought on 7 September 2006 by Beau against the judgment of the Civil Service Tribunal delivered on 28 June 2006 in Case F-39/05, Beau v Commission | 38 |
| 2006/C 281/8 | Case T-253/06 P: Appeal brought on 8 September 2006 by Chassagne against the order of the Civil Service Tribunal delivered on 29 June 2006 in Case F-11/05, Chassagne v Commission | 38 |
| 2006/C 281/9 | Case T-255/06: Action brought on 15 September 2006 — Budějovický Budvar v OHIM — Anheuser-Busch (BUD) | 39 |
| 2006/C 281/0 | Case T-257/06: Action brought on 15 September 2006 — Budějovický Budvar v OHIM — Anheuser-Busch (word mark BUD) | 39 |
| 2006/C 281/1 | Case T-260/06: Action brought on 15 September 2006 — Arktouros v Commission | 40 |
| 2006/C 281/2 | Case T-263/06: Action brought on 25 September 2006 — Greece v Commission | 41 |
| 2006/C 281/3 | Case T-267/06: Action brought on 25 September 2006 — Italian Republic v Commission | 41 |
| 2006/C 281/4 | Case T-269/06: Action brought on 21 September 2006 — Rautaruukki v OHIM (RAUTARUUKKI) | 42 |
| 2006/C 281/5 | Case T-282/06: Action brought on 9 October 2006– Sun Chemical Group and others v Commission | 42 |
| 2006/C 281/6 | Case T-381/03: Order of the Court of First Instance of 27 September 2006 — Izar Construcciones Navales v Commission | 43 |
| 2006/C 281/7 | Case T-382/03: Order of the Court of First Instance of 27 September 2006 — Izar Construcciones Navales v Commission | 43 |
| 2006/C 281/8 | Case T-383/04: Order of the Court of First Instance of 27 September 2006 — Drazdansky v OHIM — Bad Heilbrunner Naturheilmittel (VITACAN) | 43 |
| | EUROPEAN UNION CIVIL SERVICE TRIBUNAL |
| 2006/C 281/9 | Case F-82/06: Action brought on 21 July 2006 — Duyster v Commission | 44 |
| 2006/C 281/0 | Case F-88/06: Action brought on 28 July 2006 — Pantalis v Commission | 44 |
| 2006/C 281/1 | Case F-98/06: Action brought on 24 August 2006 — Lohiniva v Commission | 45 |
| 2006/C 281/2 | Case F-105/06: Action brought on 4 September 2006 — Lübking and Others v Commission | 45 |
| 2006/C 281/3 | Case F-106/06: Action brought on 1st September 2006 — Erbežnik v European Parliament | 46 |
| 2006/C 281/4 | Case F-109/06: Action brought on 15 September 2006 — Dittert v Commission | 47 |
| 2006/C 281/5 | Case F-110/06: Action brought on 15 September 2006 — Carpi Badía v Commission | 48 |
| 2006/C 281/6 | Case F-111/06: Action brought on 25 September 2006 — Giannopoulos v Council | 48 |
| 2006/C 281/7 | Case F-112/06: Action brought on 22 September 2006 — Krčová v Court of Justice | 49 |
| 2006/C 281/8 | Case F-113/06: Action brought on 29 September 2006 — Bouis and Others v Commission | 49 |
| 2006/C 281/9 | Case F-114/06: Action brought on 29 September 2006 — Liotti v Commission | 50 |
| 2006/C 281/0 | Case F-35/06: Order of the Civil Service Tribunal of 4 October 2006 — Grunheid v Commission | 50 |

Notice No

Contents

page

I   Information

Court of Justice

COURT OF JUSTICE

2006/C 281/1

Case C-53/04: Judgment of the Court (Second Chamber) of 7 September 2006 (reference for a preliminary ruling from the Tribunale di Genova — Italy) — Cristiano Marrosu, Gianluca Sardino v Azienda Ospedaliera Ospedale San Martino di Genova e Cliniche Universitarie Convenzionate (Directive 1999/70/EC — Clauses 1(b) and 5 of the framework agreement on fixed-term work — Establishment of employment relationships of indefinite duration resulting from infringement of the rules governing successive fixed-term contracts — Possible derogation in respect of employment contracts in the public sector)

1

2006/C 281/2

Joined Cases C-123/04 and C-124/04: Judgment of the Court (Grand Chamber) of 12 September 2006 (references for a preliminary ruling from the Oberlandesgericht Oldenburg — Germany) — Industrias Nucleares do Brasil SA, Siemens AG v UBS AG (C-123/04), Texas Utilities Electric Corporation (C-124/04) (EAEC Treaty — Supplies — Property ownership — Enrichment of uranium on the territory of the Community by a national of a third State)

1

2006/C 281/3

Case C-145/04: Judgment of the Court (Grand Chamber) of 12 September 2006 — Kingdom of Spain v United Kingdom of Great Britain and Northern Ireland (European Parliament — Elections — Right to vote — Commonwealth citizens residing in Gibraltar and not having citizenship of the Union)

2

2006/C 281/4

Joined Cases C-158/04 and C-159/04: Judgment of the Court (First Chamber) of 14 September 2006 (reference for a preliminary ruling from the Diikitiko Protodikio Ioanninon — Greece) — Alfa Vita Vassilopoulos AE, formerly Trofo Super-Markets AE v Elliniko Dimosio, Nomarkhiaki Aftodiikisi Ioanninon (C-158/04), Carrefour Marinopoulos AE v Elliniko Dimosio, Nomarkhiaki Aftodiikisi Ioanninon (C-159/04) (Free movement of goods — Article 28 EC — Quantitative restrictions — Measures having equivalent effect — Marketing of frozen bake-off products)

3

2006/C 281/5

Case C-167/04 P: Judgment of the Court (Second Chamber) of 21 September 2006 — JCB Service v Commission of the European Communities, (Appeals — Cartels — Article 81 EC — Distribution agreements — Concerted practices — Notification — Form A/B — Application for exemption — Rejection — Duration of the assessment of the notification procedure — Rights of the defence — Presumption of innocence — Complaint — Infringement — General prohibition on passive sales — Limitation of the sources of supply — New pleas in law — Fines — Guidelines — Gravity of the infringement — Duration — Attenuating circumstances — Cross-appeal — Aggravating circumstances)

3

2006/C 281/6

Case C-168/04: Judgment of the Court (First Chamber) of 21 September 2006 — Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Article 49 EC — Freedom to provide services — Undertaking employing workers who are not nationals of a Member State — Undertaking providing services in another Member State — EU Posting Confirmation)

4

2006/C 281/7

Joined Cases C-181/04 to C-183/04: Judgment of the Court (Second Chamber) of 14 September 2006 (references for a preliminary ruling from the Simvoulio tis Epikratias — Greece) — Elmeka NE v Ipourgos Ikonomikon (Sixth VAT Directive — Exemptions — Article 15(4)(a), (5) and (8) — Exemption for the chartering of sea-going vessels — Scope)

4

2006/C 281/8

Case C-196/04: Judgment of the Court (Grand Chamber) of 12 September 2006 (reference for a preliminary ruling from the Special Commissioners, London — United Kingdom) — Cadbury Schweppes plc, Cadbury Schweppes Overseas Ltd v Commissioners of Inland Revenue (Freedom of establishment — Law on controlled foreign companies — Inclusion of the profits of controlled foreign companies in the tax base of the parent company)

5

2006/C 281/9

Case C-300/04: Judgment of the Court (Grand Chamber) of 12 September 2006 (reference for a preliminary ruling from the Raad van State (Netherlands)) — M.G. Eman, O.B. Sevinger v College van burgemeester en wethouders van Den Haag (European Parliament — Elections — Right to vote — Requirements of residence in the Netherlands for Netherlands citizens of Aruba — Citizenship of the Union)

5

2006/C 281/0

Case C-310/04: Judgment of the Court (Second Chamber) of 7 September 2006 — Kingdom of Spain v Council of the European Union (Actions for annulment — Agriculture — Chapter 10a of Title IV of Regulation (EC) No 1782/2003, inserted by Article 1(20) of Regulation (EC) No 864/2004 — Amendment of the support scheme for cotton — Condition that the area is maintained at least until the boll opening — Compliance with Protocol 4 on cotton annexed to the Act of Accession of the Hellenic Republic to the European Communities — Concept of production aid — Obligation to state reasons — Misuse of powers — General principles of proportionality and protection of legitimate expectations)

6

2006/C 281/1

Case C-353/04: Judgment of the Court (First Chamber) of 7 September 2006 (Reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Nowaco Germany GmbH v Hauptzollamt Hamburg-Jonas (Regulations (EEC) Nos 1538/91 and 3665/87 — Community Customs Code — Export refunds — Conditions for granting — Sound and fair marketable quality — Customs procedure — Export declaration — Physical check — Sample — Tolerated number of defective units — Uniform quality — Rights and obligations of the exporter and of the customs authority — Poultrymeat)

7

2006/C 281/2

Case C-356/04: Judgment of the Court (Grand Chamber) of 19 September 2006 (reference for a preliminary ruling from the Rechtbank van Koophandel te Brussel, Belgium) — Lidl Belgium GmbH & Co KG v Etablissementen Franz Colruyt NV (Directives 84/450/EEC and 97/55/EC — Misleading advertising — Comparative advertising — Conditions under which comparative advertising is permitted — Comparison of the general level of the prices charged by chains of stores — Comparison of the prices of a selection of products)

7

2006/C 281/3

Case C-386/04: Judgment of the Court (Third Chamber) of 14 September 2006 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Centro di Musicologia Walter Stauffer v Finanzamt München für Körperschaften (Free movement of capital — Corporation tax — Exemption of rental income — Residence qualification — Charitable foundation governed by private law)

9

2006/C 281/4

Joined Cases C-392/04 and C-422/04: Judgment of the Court (Grand Chamber) of 19 September 2006 (references for a preliminary ruling from the Bundesverwaltungsgericht, Germany) — i-21 Germany GmbH and Arcor AG & Co. KG v Bundesrepublik Deutschland (Telecommunication services — Directive 97/13/EC — Article 11(1) — Fees and charges for individual licences — Article 10 EC — Primacy of Community law — Legal certainty — Final administrative decision)

9

2006/C 281/5

Case C-479/04: Judgment of the Court (Grand Chamber) of 12 September 2006 (reference for a preliminary ruling from the Østre Landsret (Denmark)) — Laserdisken ApS v Kulturministeriet (Directive 2001/29/EC — Harmonisation of certain aspects of copyright and related rights in the information society — Article 4 — Distribution rights — Rule of exhaustion — Legal basis — International agreements — Competition policy — Principle of proportionality — Freedom of expression — Principle of equal treatment — Articles 151 EC and 153 EC)

10

2006/C 281/6

Case C-496/04: Judgment of the Court (First Chamber) of 14 September 2006 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven — Netherlands) –J. Slob v Productschap Zuivel (Milk and milk products — Direct sales — Reference quantities — Overruns — Additional levy on milk — Obligation on producers to keep stock accounts — Article 7(1) and (3) of Regulation (EEC) No 536/93 — Supplementary national measures — Competence of the Member States)

10

2006/C 281/7

Case C-506/04: Judgment of the Court (Grand Chamber) of 19 September 2006 (reference for a preliminary ruling from the Cour administrative, Luxembourg) — Graham J. Wilson v Ordre des avocats du barreau de Luxembourg (Freedom of establishment — Directive 98/5/EC — Practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained — Conditions for registration with the competent authority in the host Member State — Prior examination of knowledge of the languages of the host Member State — Remedy before a court or tribunal in accordance with domestic law)

11

2006/C 281/8

Case C-526/04: Judgment of the Court (Second Chamber) of 7 September 2006 (reference for a preliminary ruling from the Cour de cassation — France) — Laboratoires Boiron SA v Union de recouvrement des cotisations de sécurité sociale et d'allocations familiales (Urssaf) de Lyon, assuming the rights and obligations of the Agence centrale des organismes de sécurité sociale (ACOSS), (State aid — Articles 87 and 88(3) CE — Tax on direct sales of medicines — Applicable to pharmaceutical laboratories rather than wholesale distributors — Prohibition on implementing a non-notified aid measure — Possibility of pleading that an aid measure is unlawful in order to obtain reimbursement of a charge — Compensation for discharging public service obligations imposed on wholesale distributors — Burden of proof in relation to overcompensation — Detailed rules laid down by national law — Prohibition on making reimbursement of a charge practically impossible or excessively difficult)

12

2006/C 281/9

Case C-72/05: Judgment of the Court (First Chamber) of 14 September 2006 (reference for a preliminary ruling from the Finanzgericht München, Germany) — Hausgemeinschaft Jörg und Stefanie Wollny v Finanzamt Landshut (Sixth VAT Directive — Article 11A(1)(c) — Use of property forming part of the assets of a business for private purposes by a taxable person — Treatment of that use as a supply of services for consideration — Determination of the taxable amount — Definition of full cost to the taxable person of providing those services)

12

2006/C 281/0

Case C-82/05: Judgment of the Court (First Chamber) of 14 September 2006 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Free movement of goods — Article 28 EC — Quantitative restrictions — Measures having equivalent effect — Marketing of frozen bakery products)

13

2006/C 281/1

Case C-138/05: Judgment of the Court (Second Chamber) of 14 September 2006 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven — Netherlands ) — Stichting Zuid-Hollandse Milieufederatie v Minister van Landbouw, Natuur en Voedselkwaliteit (Authorisation for the placing of plant protection and biocidal products on the market — Directive 91/414/EEC — Article 8 — Directive 98/8/EC — Article 16 — Power of Member States during the transitional period)

13

2006/C 281/2

Case C-193/05: Judgment of the Court (Grand Chamber) of 19 September 2006 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Freedom of establishment — Directive 98/5/EC — Practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained — Prior examination of knowledge of the languages of the host Member State — Prohibition on being a person authorised to accept service (domiciliataire) on behalf of companies — Requirement to produce each year the certificate of registration with the competent authority of the home Member State)

14

2006/C 281/3

Case C-228/05: Judgment of the Court (Third Chamber) of 14 September 2006 (reference for a preliminary ruling from the Commissione tributaria di primo grado di Trento — Italy) — Stradasfalti Srl v Agenzia delle Entrate — Ufficio di Trento (Sixth VAT Directive — Articles 17(7) and 29 — Right to deduct input VAT)

15

2006/C 281/4

Case C-244/05: Judgment of the Court (Second Chamber) of 14 September 2006 (reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof — Germany) — Bund Naturschutz in Bayern eV, Johann Märkl, Ludwig Neumair, Matthias Maier, Josef Hörmann, Christine Hörmann, Albert Hörmann, Maria Rimpfl, Georg Rimpfl, Eva Rimpfl, Karl Kressierer, Magdelena Kressierer, Anton Wastl, Amalie Wastl, Richard Westenthanner, Barbara Westenthanner, Angelika Graubner-Riedelsheimer, Michael Graubner, Wolfram Graubner, Sylvia Stracke, Eva Maria Thiel, Friederike Nischwitz, Georg Daller v Freistaat Bayern (Conservation of natural habitats and of wild fauna and flora — Directive 92/43/EEC — Protection regime before the inclusion of a habitat in the list of sites of Community importance)

16

2006/C 281/5

Case C-417/05 P: Judgment of the Court (Second Chamber) of 14 September 2006 — Commission of the European Communities v Maria Dolores Fernández Gómez (Appeals — Temporary staff — Article 2(a) of the CEOS — Period completed within the Commission as a national expert on secondment — Application for annulment — Admissibility — Request under Article 90 (1) of the Staff Regulations — Definition — Measure adversely affecting an official)

16

2006/C 281/6

Case C-100/06: Judgment of the Court (Fourth Chamber) of 21 September 2006 — Commission of the European Communities v Grand-Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2003/66/EC — Energy labelling of household electric refrigerators, freezers and their combinations — Failure to transpose within the prescribed period)

17

2006/C 281/7

Case C-331/06: Reference for a preliminary ruling from the Rechtbank Amsterdam (Netherlands) lodged on 31 July 2006 — K.D. Chuck v Raad van bestuur van de Sociale Verzekeringsbank

17

2006/C 281/8

Case C-337/06: Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 7 August 2006 — Bayerischer Rundfunk, Deutschland Radio, Hessischer Rundfunk, Mitteldeutscher Rundfunk, Norddeutscher Rundfunk, Radio Bremen, Rundfunk Berlin-Brandenburg, Saarländischer Rundfunk, Südwestrundfunk, Westdeutscher Rundfunk, Zweites Deutsches Fernsehen v GEWA, Gesellschaft für Gebäudereinigung und Wartung mbH

18

2006/C 281/9

Case C-343/06: Reference for a preliminary ruling from the Verwaltungsgericht Chemnitz (Germany) lodged on 8 August 2006 — Peter Funk v Stadt Chemnitz

18

2006/C 281/0

Case C-345/06: Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat im Land Niederösterreich (Austria) lodged on 10 August 2006 — Gottfried Heinrich

19

2006/C 281/1

Case C-347/06: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale di Brescia (Italy) lodged on 17 August 2006 — ASM Brescia S.p.A. v Comune di Rodengo Saiano

19

2006/C 281/2

Case C-349/06: Reference for a preliminary ruling from the Verwaltungsgericht Darmstadt (Germany) lodged on 21 August 2006 — Murat Polat v Stadt Rüsselsheim

20

2006/C 281/3

Case C-350/06: Reference for a preliminary ruling from the Landesarbeitsgericht Düsseldorf (Germany) lodged on 21 August 2006 — Gerhard Schultz-Hoff v Deutsche Rentenversicherung Bund

21

2006/C 281/4

Case C-352/06: Reference for a preliminary ruling from the Finanzgericht Köln lodged on 25 August 2006 — Brigitte Bosmann v Bundesagentur für Arbeit, Familienkasse Aachen

21

2006/C 281/5

Case C-353/06: Reference for a preliminary ruling from the Amtsgericht Flensburg (Germany) lodged on 28 August 2006 — in the Registry Office case Stefan Grunkin and Dorothee Regina Paul, other parties to the proceedings: Leonhard Matthias Grunkin-Paul and Standesamt Niebüll

22

2006/C 281/6

Case C-357/06: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 30 August 2006 — Frigerio Luigi & C. S.n.c. v Comune di Triuggio

22

2006/C 281/7

Case C-365/06: Action brought on 7 September 2006 — Commission of the European Communities v Italian Republic

23

2006/C 281/8

Case C-366/06: Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 8 September 2006 — DNA Verkot Oy

24

2006/C 281/9

Case C-368/06: Reference for a preliminary ruling from the Administrative Court, Lyon lodged on 8 September 2006 — CEDILAC v Minister for the Economy, Finance and Industry

25

2006/C 281/0

Case C-373/06 P: Appeal brought on 13 September 2006 by Thomas Faherty against the judgment of the Court of First Instance (First Chamber) delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03: Cathal Boyle and others v Commission of the European Communities

25

2006/C 281/1

Case C-379/06 P: Appeal brought on 14 September 2006 by Larry Murphy against the judgment of the Court of First Instance (First Chamber) delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03: Cathal Boyle and others v Commission of the European Communities

26

2006/C 281/2

Case C-397/06: Action brought on 22 September 2006 — Commission of the European Communities v Republic of Estonia

26

2006/C 281/3

Case C-407/06: Action brought on 3 October 2006 — Commission of the European Communities v Kingdom of Belgium

27

2006/C 281/4

Case C-416/05: Order of the President of the Court of 14 July 2006 — Commission of the European Communities v Grand Duchy of Luxembourg

27

COURT OF FIRST INSTANCE

2006/C 281/5

Joined Cases T-217/99, T-321/00 and T-222/01: Judgment of the Court of First Instance of 13 September 2006 — Sinaga v Commission (Sugar — Poseima Programme — Regulation (EEC) No 1600/92 — Sugar forecast supply balance for the Azores — Action for annulment — Admissibility — Definition of traditional shipment to the rest of the Community — Statement of reasons — Compliance with essential procedural requirements)

28

2006/C 281/6

Case T-166/01: Judgment of the Court of First Instance of 19 September 2006 — Lucchini SpA v Commission of the European Communities (ECSC — State aid — Environmental aid — Aid by Italy in favour of the Lucchini steel company — Refusal to authorise the proposed aid — Applicable legal framework — Eligibility of the notified investments as aid for environmental protection — Conditions governing the compatibility of aid with the common market — Statement of reasons)

28

2006/C 281/7

Case T-226/01: Judgment of the Court of First Instance of 13 September 2006 — CAS Succhi di Frutta SpA v Commission (Non-contractual liability — Tendering procedure — Payment in kind — Damage suffered on the market in question due to the payment in kind — Causal link)

29

2006/C 281/8

Case T-210/02: Judgment of the Court of First Instance of 13 September 2006 — British Aggregates v Commission (State aid — Environmental tax on aggregates in the United Kingdom — Commission Decision not to raise objections — Action for annulment — Admissibility — Person individually concerned — Selective character — Obligation to state adequate reasons — Diligent and impartial examination)

29

2006/C 281/9

Case T-300/03: Judgment of the Court of First Instance of 4 October 2006 — Moser Baer India v Council (Anti-subsidy investigations — Recordable compact discs originating in India — Calculation of the amount of the subsidy — Determination of injury — Causal link — Rights of the defence)

30

2006/C 281/0

Case T-115/04: Judgment of the Court of First Instance of 14 September 2006 — Laroche v Commission (Community officials — Career Development Review — Appraisal period 2001/2002 — Decision to close — Time-limit for challenge — Calculation)

30

2006/C 281/1

Case T-119/04: Judgment of the Court of First Instance of 14 September 2006 — Rossi Ferreras v Commission (Officials — Career development report — Application for annulment — Assessment period 2001-2002 — Opinion of previous immediate superior — Failure of assessor to take into account — Claim for compensation — Inadmissibility)

30

2006/C 281/2

Case T-168/04: Judgment of the Court of First Instance of 7 September 2006 — L & D v OHIM — Sämann (Aire Limpio) (Community trade mark — Opposition proceedings — Earlier figurative marks representing a fir tree including, in certain cases, verbal elements — Application for figurative mark containing the verbal element Aire Limpio — Likelihood of confusion — Article 8(1)(b) and Article 73 of Regulation (EC) No 40/94)

31

2006/C 281/3

Case T-188/04: Judgment of the Court of First Instance of 4 October 2006 — Freixenet v OHIM (Shape of a frosted matt black bottle) (Community trade mark — Shape of a frosted matt black bottle — Absolute ground of refusal — Article 7(1)(b) of Regulation (EC) No 40/94 — Lack of distinctive character — Infringement of the rights of the defence — Article 73 of Regulation No 40/94)

31

2006/C 281/4

Case T-190/04: Judgment of the Court of First Instance of 4 October 2006 — Freixenet v OHIM (Shape of a frosted white bottle) (Community trade mark — Shape of a frosted white bottle — Absolute ground of refusal — Article 7(1)(b) of Regulation (EC) No 40/94 — Lack of distinctive character — Infringement of the rights of the defence — Article 73 of Regulation No 40/94)

32

2006/C 281/5

Case T-191/04: Judgment of the Court of First Instance of 13 September 2006 — MIP METRO v OHIM Tesco Stores (METRO) (Community trade mark — Opposition proceedings — Application for a figurative mark consisting of the word mark METRO — Earlier national word mark METRO — Expiry of protection of earlier national trade mark)

32

2006/C 281/6

Case T-193/04: Judgment of the Court of First Instance of 4 October 2006 — Tillack v Commission (Investigation by the European Anti-Fraud Office (OLAF) into the publication of confidential information — Suspicions of bribery and breach of professional secrecy — Communication to national judicial authorities of information relating to situations liable to lead to criminal proceedings — Search of the home and office of a journalist — Action for annulment — Admissibility — Action for damages — Causal link — Sufficiently serious breach)

33

2006/C 281/7

Joined Cases T-304/04 and T-316/04: Judgment of the Court of First Instance of 6 September 2006 — Italy and Wam v Commission (State aid — Loans at reduced rates intended to make it possible to become established in certain non-member countries — Effect on trade between Member States and distortion of competition — Statement of reasons)

33

2006/C 281/8

Case T-6/05: Judgment of the Court of First Instance of 6 September 2006 — DEF-TEC Defense Technology v OHIM — Defense Technology (FIRST DEFENSE AEROSOL PEPPER PROJECTOR) (Community trade mark — Opposition proceedings — Application for figurative mark FIRST DEFENSE AEROSOL PEPPER PROJECTOR — Relative ground for refusal — Article 8(3) of Regulation (EC) No 40/94 — Existence of trade mark proprietor's consent)

34

2006/C 281/9

Case T-96/05: Judgment of the Court of First Instance of 4 October 2006 — Monte di Massima v OHIM — Höfferle Internationale (Valle della Luna) (Community trade mark — Opposition procedure — Application for figurative Community trade mark Valle della Luna — Earlier national figurative mark VALLE DE LA LUNA — Proof of use of the earlier mark — Article 15(2)(a), and Article 43(2) and (3) of Regulation (EC) No 40/94)

34

2006/C 281/0

Case T-133/05: Judgment of the Court of First Instance of 7 September 2006 — Meric v OHIM — Arbora & Ausonia (PAM-PIM'S BABY-PROP) (Community trade mark — Opposition proceedings — Earlier national figurative and word marks PAM-PAM — Application for Community word mark PAM-PIM'S BABY-PROP — Relative ground for refusal — Article 8(1)(b) of Regulation (EC) No 40/94)

35

2006/C 281/1

Case T-34/05: Order of the Court of First Instance of 6 September 2006 — Bayer CropScience and Others v Commission (Plant protection products — Active substance endosulfan — Reexamination of authorisation for placing products on the market — Action for failure to act — No need to adjudicate)

35

2006/C 281/2

Case T-148/05: Order of the Court of First Instance of 5 September 2006 — Comunidad autónoma de Madrid and Mintra v Commission (Provision of data relating to the excessive deficit procedure — Regulation (EC) No 3605/93 — European system of accounts 1995 (ESA 95) — Regulation (EC) No 2223/96 — Letter of the Statistical Office of the European Communities (Eurostat) — Action for annulment — Act against which proceedings can be brought — Inadmissibility)

36

2006/C 281/3

Case T-242/05: Order of the Court of First Instance of 5 September 2006 — AEPI v Commission (Copyright and related rights — Proceedings for a declaration of failure to fulfil obligations — Closure of procedure on a complaint submitted by an individual — Action for annulment — Inadmissibility)

36

2006/C 281/4

Case T-350/05: Order of the Court of First Instance of 5 September 2006 — Finland v Commission (Preliminary issues — Objection of inadmissibility — Act without binding legal effect — Own resources of the European Communities — Infringement procedure — Default interest provided for in Article 11 of Regulation (EC, Euratom) No 1150/2000 — Negotiation of an agreement on a conditional payment)

37

2006/C 281/5

Case T-224/06: Action brought on 22 August 2006 — Otto v OHIM — L'Altra Moda (l'Altra Moda)

37

2006/C 281/6

Case T-250/06 P: Appeal brought on 11 September 2006 by Ott and Others against the order of 30 June 2006 by the Civil Service Tribubal in Case F-87/05 Ott and Others v Commission

38

2006/C 281/7

Case T-252/06 P: Appeal brought on 7 September 2006 by Beau against the judgment of the Civil Service Tribunal delivered on 28 June 2006 in Case F-39/05, Beau v Commission

38

2006/C 281/8

Case T-253/06 P: Appeal brought on 8 September 2006 by Chassagne against the order of the Civil Service Tribunal delivered on 29 June 2006 in Case F-11/05, Chassagne v Commission

38

2006/C 281/9

Case T-255/06: Action brought on 15 September 2006 — Budějovický Budvar v OHIM — Anheuser-Busch (BUD)

39

2006/C 281/0

Case T-257/06: Action brought on 15 September 2006 — Budějovický Budvar v OHIM — Anheuser-Busch (word mark BUD)

39

2006/C 281/1

Case T-260/06: Action brought on 15 September 2006 — Arktouros v Commission

40

2006/C 281/2

Case T-263/06: Action brought on 25 September 2006 — Greece v Commission

41

2006/C 281/3

Case T-267/06: Action brought on 25 September 2006 — Italian Republic v Commission

41

2006/C 281/4

Case T-269/06: Action brought on 21 September 2006 — Rautaruukki v OHIM (RAUTARUUKKI)

42

2006/C 281/5

Case T-282/06: Action brought on 9 October 2006– Sun Chemical Group and others v Commission

42

2006/C 281/6

Case T-381/03: Order of the Court of First Instance of 27 September 2006 — Izar Construcciones Navales v Commission

43

2006/C 281/7

Case T-382/03: Order of the Court of First Instance of 27 September 2006 — Izar Construcciones Navales v Commission

43

2006/C 281/8

Case T-383/04: Order of the Court of First Instance of 27 September 2006 — Drazdansky v OHIM — Bad Heilbrunner Naturheilmittel (VITACAN)

43

EUROPEAN UNION CIVIL SERVICE TRIBUNAL

2006/C 281/9

Case F-82/06: Action brought on 21 July 2006 — Duyster v Commission

44

2006/C 281/0

Case F-88/06: Action brought on 28 July 2006 — Pantalis v Commission

44

2006/C 281/1

Case F-98/06: Action brought on 24 August 2006 — Lohiniva v Commission

45

2006/C 281/2

Case F-105/06: Action brought on 4 September 2006 — Lübking and Others v Commission

45

2006/C 281/3

Case F-106/06: Action brought on 1st September 2006 — Erbežnik v European Parliament

46

2006/C 281/4

Case F-109/06: Action brought on 15 September 2006 — Dittert v Commission

47

2006/C 281/5

Case F-110/06: Action brought on 15 September 2006 — Carpi Badía v Commission

48

2006/C 281/6

Case F-111/06: Action brought on 25 September 2006 — Giannopoulos v Council

48

2006/C 281/7

Case F-112/06: Action brought on 22 September 2006 — Krčová v Court of Justice

49

2006/C 281/8

Case F-113/06: Action brought on 29 September 2006 — Bouis and Others v Commission

49

2006/C 281/9

Case F-114/06: Action brought on 29 September 2006 — Liotti v Commission

50

2006/C 281/0

Case F-35/06: Order of the Civil Service Tribunal of 4 October 2006 — Grunheid v Commission

50

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III   Notices

2006/C 281/1

Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 261, 28.10.2006

Official Journal of the European Union

51

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EN

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I Information

Court of Justice

COURT OF JUSTICE

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18.11.2006

EN

Official Journal of the European Union

C 281/1

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

(Case C-53/04) (1)

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

(2006/C 281/01)

Language of the case: Italian

Referring court

Tribunale di Genova

Parties to the main proceedings

Applicants: Cristiano Marrosu, Gianluca Sardino

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

Re:

Preliminary ruling — Tribunale di Genova — Interpretation of Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43) — Establishment of an employment relationship of indefinite duration in the case where the rules governing successive fixed-term contracts have been infringed — Possibility of derogation in the case of employment contracts signed with public authorities

Operative part of the judgment

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

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(1)  OJ C 85, 3.4.2004.

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18.11.2006

EN

Official Journal of the European Union

C 281/1

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Judgment of the Court (Grand Chamber) of 12 September 2006 (references for a preliminary ruling from the Oberlandesgericht Oldenburg — Germany) — Industrias Nucleares do Brasil SA, Siemens AG v UBS AG (C-123/04), Texas Utilities Electric Corporation (C-124/04)

(Joined Cases C-123/04 and C-124/04) (1)

(EAEC Treaty - Supplies - Property ownership - Enrichment of uranium on the territory of the Community by a national of a third State)

(2006/C 281/02)

Language of the case: German

Referring court

Oberlandesgericht Oldenburg

Parties to the main proceedings

Applicants: Industrias Nucleares do Brasil SA, Siemens AG

Defendants: UBS AG (C-123/04), Texas Utilities Electric Corporation (C-124/04),

Re:

Reference for a preliminary ruling — Oberlandesgericht Oldenburg — Interpretation of Arts. 57, 73, 75, 86, 87, 196 and 197 EA — Contract of loan guaranteed by a security over uranium belonging to an undertaking from a third State, enriched and stored in the Community

Operative part

| 1. | The first paragraph of Article 75 EA is to be interpreted as meaning that the terms ‘processing’, ‘conversion’ and ‘shaping’ in that provision also encompass uranium enrichment. |
| --- | --- |

1.

The first paragraph of Article 75 EA is to be interpreted as meaning that the terms ‘processing’, ‘conversion’ and ‘shaping’ in that provision also encompass uranium enrichment.

| 2. | Article 196(b) EA is to be interpreted as meaning that an undertaking having its seat outside the territories of the Member States does not pursue, within the meaning of that provision, all or any of its activities in those territories if it maintains with an undertaking having its seat in those territories a commercial relationship either for the supply of raw material for the production of enriched uranium and the procurement of enriched uranium or for the storage of that enriched uranium. |
| --- | --- |

2.

Article 196(b) EA is to be interpreted as meaning that an undertaking having its seat outside the territories of the Member States does not pursue, within the meaning of that provision, all or any of its activities in those territories if it maintains with an undertaking having its seat in those territories a commercial relationship either for the supply of raw material for the production of enriched uranium and the procurement of enriched uranium or for the storage of that enriched uranium.

| 3. | Article 75(c) EA is to be interpreted as meaning that the material supplied for treatment, conversion or shaping need not be identical to the material subsequently returned and that it is sufficient for the processed material to be commensurate in terms of quality and quantity with the material supplied, although it may be impossible, in some cases, to attribute the material returned to the material supplied. In addition, the provision is to be interpreted as meaning that the application of Article 75(c) EA is not precluded where the undertaking carrying out the process acquires title to the raw material on delivery and therefore has to transfer title to the enriched uranium back to the other contracting party on completion of the process. |
| --- | --- |

3.

Article 75(c) EA is to be interpreted as meaning that the material supplied for treatment, conversion or shaping need not be identical to the material subsequently returned and that it is sufficient for the processed material to be commensurate in terms of quality and quantity with the material supplied, although it may be impossible, in some cases, to attribute the material returned to the material supplied. In addition, the provision is to be interpreted as meaning that the application of Article 75(c) EA is not precluded where the undertaking carrying out the process acquires title to the raw material on delivery and therefore has to transfer title to the enriched uranium back to the other contracting party on completion of the process.

| 4. | Article 196(b) EA is to be interpreted as meaning that an undertaking does not pursue all or any of its activities in the territories of the Member States within the meaning of that provision if it acquires or disposes of enriched uranium stored there. |
| --- | --- |

4.

Article 196(b) EA is to be interpreted as meaning that an undertaking does not pursue all or any of its activities in the territories of the Member States within the meaning of that provision if it acquires or disposes of enriched uranium stored there.

| 5. | Article 73 EA is to be interpreted as meaning that it does not apply to agreements concerning enriched uranium stored within the territory of the European Atomic Energy Community where all the parties to the agreement are nationals of third States. |
| --- | --- |

5.

Article 73 EA is to be interpreted as meaning that it does not apply to agreements concerning enriched uranium stored within the territory of the European Atomic Energy Community where all the parties to the agreement are nationals of third States.

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(1)  OJ C 106, 30.4.2004

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/2 |
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18.11.2006

EN

Official Journal of the European Union

C 281/2

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Judgment of the Court (Grand Chamber) of 12 September 2006 — Kingdom of Spain v United Kingdom of Great Britain and Northern Ireland

(Case C-145/04) (1)

(European Parliament - Elections - Right to vote - Commonwealth citizens residing in Gibraltar and not having citizenship of the Union)

(2006/C 281/03)

Language of the case: English

Parties

Applicant: Kingdom of Spain (represented by: N. Díaz Abad and F. Díez Moreno, Agents)

Defendant: United Kingdom of Great Britain and Northern Ireland (represented by: R. Caudwell, P. Goldsmith, D. Wyatt and D. Anderson QC, Agents, and M. Chamberlain, Barrister)

Intervener in support of the defendant: Commission of the European Communities (represented by: C. Ladenburger, Agent)

Re:

Failure of a Member State to fulfil its obligations — Infringement of Articles 189 EC, 190 EC, 17 EC and 19 EC and of the 1976 Act concerning the Election of the Representatives of the European Parliament by Direct Universal Suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976 — Right of Commonwealth citizens resident in Gibraltar to vote in European elections

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders the Kingdom of Spain to pay the costs;

| 3. | Orders the Commission of the European Communities to bear its own costs. |
| --- | --- |

3.

Orders the Commission of the European Communities to bear its own costs.

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(1)  OJ C 106, 30.04.2004.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/3 |
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18.11.2006

EN

Official Journal of the European Union

C 281/3

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Judgment of the Court (First Chamber) of 14 September 2006 (reference for a preliminary ruling from the Diikitiko Protodikio Ioanninon — Greece) — Alfa Vita Vassilopoulos AE, formerly Trofo Super-Markets AE v Elliniko Dimosio, Nomarkhiaki Aftodiikisi Ioanninon (C-158/04), Carrefour Marinopoulos AE v Elliniko Dimosio, Nomarkhiaki Aftodiikisi Ioanninon (C-159/04)

(Joined Cases C-158/04 and C-159/04) (1)

(Free movement of goods - Article 28 EC - Quantitative restrictions - Measures having equivalent effect - Marketing of frozen ‘bake-off’ products)

(2006/C 281/04)

Language of the case: Greek

Referring court

Diikitiko Protodikio Ioanninon — Greece

Parties to the main proceedings

Applicants: Alfa Vita Vassilopoulos AE, formerly Trofo Super-Markets AE (C-158/04), Carrefour Marinopoulos AE (C-159/04)

Defendant: Elliniko Dimosio, Nomarkhiaki Aftodiikisi Ioanninon

Re:

Reference for a preliminary ruling — Diikitiko Protodikio Ioanninon — Marketing of ‘bake-off’ bakery products — Requirement for a licence — Compatibility with Article 28 EC

Operative part of the judgment

Article 28 EC is to be interpreted as precluding national legislation which makes the sale of ‘bake-off’ products subject to the same requirements as those applicable to the full manufacturing and marketing procedure for traditional bread and bakery products.

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(1)  OJ C 106, 30.04.2006.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/3 |
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18.11.2006

EN

Official Journal of the European Union

C 281/3

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Judgment of the Court (Second Chamber) of 21 September 2006 — JCB Service v Commission of the European Communities,

(Case C-167/04 P) (1)

(Appeals - Cartels - Article 81 EC - Distribution agreements - Concerted practices - Notification - Form A/B - Application for exemption - Rejection - Duration of the assessment of the notification procedure - Rights of the defence - Presumption of innocence - Complaint - Infringement - General prohibition on passive sales - Limitation of the sources of supply - New pleas in law - Fines - Guidelines - Gravity of the infringement - Duration - Attenuating circumstances - Cross-appeal - Aggravating circumstances)

(2006/C 281/05)

Language of the case: English

Parties

Appellant: JCB Service, (represented by: E.Morgan de Rivery and E. Friedel, lawyers)

Other party to the proceedings: Commission of the European Communities, (represented by: A. Whelan, Agent)

Re:

Appeal against the judgment of the Court of First Instance (First Chamber) of 13 January 2004 in Case T-67/01 JCB Service v Commission partially annulling the Commission Decision of 21 December 2000 relating to a proceeding under Article 81 of the EC Treaty (COMP.F.1/35.918 — JCB

Operative part of the judgment

The Court

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

1.

Dismisses the appeal.

| 2. | Allows the cross-appeal of the Commission of the European Communities. |
| --- | --- |

2.

Allows the cross-appeal of the Commission of the European Communities.

| 3. | Sets aside paragraph 2 of the operative part of the judgment of the Court of First Instance of the European Communities of 13 January 2004 in Case T-67/01 JCB Service v Commission. |
| --- | --- |

3.

Sets aside paragraph 2 of the operative part of the judgment of the Court of First Instance of the European Communities of 13 January 2004 in Case T-67/01 JCB Service v Commission.

| 4. | Fixes the amount of the fine imposed on JCB Service under Article 4 of Commission Decision 2002/190/EC of 21 December 2000 relating to a proceeding under Article 81 of the EC Treaty (Case COMP.F.1/35.918 –JCB) at EUR 30 864 000. |
| --- | --- |

4.

Fixes the amount of the fine imposed on JCB Service under Article 4 of Commission Decision 2002/190/EC of 21 December 2000 relating to a proceeding under Article 81 of the EC Treaty (Case COMP.F.1/35.918 –JCB) at EUR 30 864 000.

| 5. | Orders JCB Service to bear all the costs of these appeal proceedings. |
| --- | --- |

5.

Orders JCB Service to bear all the costs of these appeal proceedings.

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(1)  OJ C 156, 12.06.2004.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/4 |
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18.11.2006

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Official Journal of the European Union

C 281/4

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Judgment of the Court (First Chamber) of 21 September 2006 — Commission of the European Communities v Republic of Austria

(Case C-168/04) (1)

(Failure of a Member State to fulfil obligations - Article 49 EC - Freedom to provide services - Undertaking employing workers who are not nationals of a Member State - Undertaking providing services in another Member State - ‘EU Posting Confirmation’)

(2006/C 281/06)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: B. Eggers, E. Traversa and G. Braun, Agents)

Defendant: Republic of Austria (represented by: E. Riedl, C. Pesendorfer and G. Hesse)

Re:

Failure of a Member State to fulfil obligations — Article 49 EC — Posting of workers who are third-country nationals in connection with the provision of services by undertakings established in another Member State conditional on a system of acknowledgement of receipt which is a de facto system of authorisation in so far as absence of such an acknowledgement results in fines and refusal of entry and residence for the posted workers concerned.

Operative part of the judgment

The Court:

| 1. | Declares that, by making the posting of workers who are nationals of non-Member States by an undertaking established in another Member State subject to obtaining the ‘EU Posting Confirmation’ provided for in Paragraph 18(12) of the Austrian Law on the employment of foreign workers (Ausländerbeschäftigungsgesetz), the issue of which requires, first, that the workers concerned must have been employed for at least one year by that undertaking or must have concluded an employment contract of indefinite duration with it and, secondly, evidence that the Austrian employment and wage conditions are complied with, and by laying down in Paragraph 10(1)(3) of the Law on aliens (Fremdengesetz) a ground for the automatic refusal of an entry and residence permit, without exception, which does not allow the situation of workers from a non-Member State, lawfully posted by an undertaking established in another Member State, to be regularised when those workers have entered the national territory without a visa, the Republic of Austria has failed to fulfil its obligations under Article 49 EC. |
| --- | --- |

1.

Declares that, by making the posting of workers who are nationals of non-Member States by an undertaking established in another Member State subject to obtaining the ‘EU Posting Confirmation’ provided for in Paragraph 18(12) of the Austrian Law on the employment of foreign workers (Ausländerbeschäftigungsgesetz), the issue of which requires, first, that the workers concerned must have been employed for at least one year by that undertaking or must have concluded an employment contract of indefinite duration with it and, secondly, evidence that the Austrian employment and wage conditions are complied with, and by laying down in Paragraph 10(1)(3) of the Law on aliens (Fremdengesetz) a ground for the automatic refusal of an entry and residence permit, without exception, which does not allow the situation of workers from a non-Member State, lawfully posted by an undertaking established in another Member State, to be regularised when those workers have entered the national territory without a visa, the Republic of Austria has failed to fulfil its obligations under Article 49 EC.

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

2.

Orders the Republic of Austria to pay the costs.

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(1)  OJ C 146, 29.05.2004.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/4 |
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18.11.2006

EN

Official Journal of the European Union

C 281/4

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Judgment of the Court (Second Chamber) of 14 September 2006 (references for a preliminary ruling from the Simvoulio tis Epikratias — Greece) — Elmeka NE v Ipourgos Ikonomikon

(Joined Cases C-181/04 to C-183/04) (1)

(Sixth VAT Directive - Exemptions - Article 15(4)(a), (5) and (8) - Exemption for the chartering of sea-going vessels - Scope)

(2006/C 281/07)

Language of the case: Greek

Referring court

Simvoulio tis Epikratias

Parties to the main proceedings

Applicant: Elmeka NE

Defendant: Ipourgos Ikonomikon

Re:

Reference for a preliminary ruling — Simvoulio tis Epikratias — Interpretation of Article 15(4), (5) and (8) of Sixth Council Directive (77/388/EEC) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Exemptions — Exemption for the chartering of sea-going vessels — Scope

Operative part of the judgment

The Court hereby rules:

| 1. | Article 15(4)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, to which Article 15(5) of that directive refers, as amended by Council Directive 92/111/EEC of 14 December 1992, applies not only to vessels used on the high seas for the carriage of passengers for reward, but also to vessels used on the high seas for the purpose of commercial, industrial or fishing activity. |
| --- | --- |

1.

Article 15(4)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, to which Article 15(5) of that directive refers, as amended by Council Directive 92/111/EEC of 14 December 1992, applies not only to vessels used on the high seas for the carriage of passengers for reward, but also to vessels used on the high seas for the purpose of commercial, industrial or fishing activity.

| 2. | Article 15(8) of the Sixth Directive (77/388) is to be interpreted as meaning that the exemption provided for therein applies to the supply of services directly to the shipowner for the direct needs of sea-going vessels. |
| --- | --- |

2.

Article 15(8) of the Sixth Directive (77/388) is to be interpreted as meaning that the exemption provided for therein applies to the supply of services directly to the shipowner for the direct needs of sea-going vessels.

| 3. | In the framework of the common system of value added tax, national tax authorities are obliged to respect the principle of protection of legitimate expectations. It falls to the referring court to decide whether, in the circumstances of the main proceedings, the taxable person could reasonably have believed that the decision in question had been taken by a competent authority. |
| --- | --- |

3.

In the framework of the common system of value added tax, national tax authorities are obliged to respect the principle of protection of legitimate expectations. It falls to the referring court to decide whether, in the circumstances of the main proceedings, the taxable person could reasonably have believed that the decision in question had been taken by a competent authority.

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(1)  OJ C 168, 26. 6. 2004.

OJ C 201, 07. 8. 2004.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/5 |
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18.11.2006

EN

Official Journal of the European Union

C 281/5

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Judgment of the Court (Grand Chamber) of 12 September 2006 (reference for a preliminary ruling from the Special Commissioners, London — United Kingdom) — Cadbury Schweppes plc, Cadbury Schweppes Overseas Ltd v Commissioners of Inland Revenue

(Case C-196/04) (1)

(Freedom of establishment - Law on controlled foreign companies - Inclusion of the profits of controlled foreign companies in the tax base of the parent company)

(2006/C 281/08)

Language of the case: English

Referring court

Special Commissioners, London

Parties to the main proceedings

Applicants: Cadbury Schweppes plc, Cadbury Schweppes Overseas Ltd

Defendant: Commissioners of Inland Revenue

Re:

Preliminary ruling — Special Commissioners, London — National legislation attributing to a parent company the profits of a subsidiary resident in another Member State which has a lower rate of taxation — Obligation of the parent company to pay a charge in order to off set the difference between the two rates of taxation — Whether compatible with Articles 43 EC, 49 EC and 56 EC

Operative part of the judgment

Articles 43 EC and 48 EC must be interpreted as precluding the inclusion in the tax base of a resident company established in a Member State of profits made by a controlled foreign company in another Member State, where those profits are subject in that State to a lower level of taxation than that applicable in the first State, unless such inclusion relates only to wholly artificial arrangements intended to escape the national tax normally payable. Accordingly, such a tax measure must not be applied where it is proven, on the basis of objective factors which are ascertainable by third parties, that despite the existence of tax motives that controlled company is actually established in the host Member State and carries on genuine economic activities there.

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(1)  OJ C 168, 26. 6. 2004.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/5 |
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18.11.2006

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Official Journal of the European Union

C 281/5

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Judgment of the Court (Grand Chamber) of 12 September 2006 (reference for a preliminary ruling from the Raad van State (Netherlands)) — M.G. Eman, O.B. Sevinger v College van burgemeester en wethouders van Den Haag

(Case C-300/04) (1)

(European Parliament - Elections - Right to vote - Requirements of residence in the Netherlands for Netherlands citizens of Aruba - Citizenship of the Union)

(2006/C 281/09)

Language of the case: Dutch

Referring court

Raad van State (Netherlands)

Parties to the main proceedings

Applicants: M.G. Eman, O.B. Sevinger

Defendant: College van burgemeester en wethouders van Den Haag

Re:

Reference for a preliminary ruling — Netherlands Raad van State — Interpretation of Articles 17 EC and 19 EC, in conjunction with Articles 189 EC, 190 EC and 299 EC — Application of the provisions on citizenship of the Union to residents of the overseas countries and territories — Right of residents of the Netherlands Antilles and Aruba to vote in elections to the European Parliament subject to a requirement of ten years' residence in the Netherlands

Operative part of the judgment

| 1. | Persons who possess the nationality of a Member State and who reside or live in a territory which is one of the overseas countries and territories referred to in Article 299(3) EC may rely on the rights conferred on citizens of the Union in Part Two of the EC Treaty. |
| --- | --- |

1.

Persons who possess the nationality of a Member State and who reside or live in a territory which is one of the overseas countries and territories referred to in Article 299(3) EC may rely on the rights conferred on citizens of the Union in Part Two of the EC Treaty.

| 2. | While, in the current state of Community law, there is nothing which precludes the Member States from defining, in compliance with Community law, the conditions of the right to vote and to stand as a candidate in elections to the European Parliament by reference to the criterion of residence in the territory in which the elections are held, the principle of equal treatment prevents, however, the criteria chosen from resulting in the different treatment of nationals who are in comparable situations, unless that difference in treatment is objectively justified. |
| --- | --- |

2.

While, in the current state of Community law, there is nothing which precludes the Member States from defining, in compliance with Community law, the conditions of the right to vote and to stand as a candidate in elections to the European Parliament by reference to the criterion of residence in the territory in which the elections are held, the principle of equal treatment prevents, however, the criteria chosen from resulting in the different treatment of nationals who are in comparable situations, unless that difference in treatment is objectively justified.

| 3. | It is for the national law of each Member State to determine the rules allowing legal redress (rechtsherstel) for a person who, because of a national provision that is contrary to Community law, has not been entered on the electoral register for the election of the members of the European Parliament of 10 June 2004 and has therefore been excluded from participation in those elections. Those remedies, which may include compensation for the loss caused by the infringement of Community law for which the State may be held responsible, must comply with the principles of equivalence and effectiveness. |
| --- | --- |

3.

It is for the national law of each Member State to determine the rules allowing legal redress (rechtsherstel) for a person who, because of a national provision that is contrary to Community law, has not been entered on the electoral register for the election of the members of the European Parliament of 10 June 2004 and has therefore been excluded from participation in those elections. Those remedies, which may include compensation for the loss caused by the infringement of Community law for which the State may be held responsible, must comply with the principles of equivalence and effectiveness.

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(1)  OJ C 228, 11.09.2004.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/6 |
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18.11.2006

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Official Journal of the European Union

C 281/6

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Judgment of the Court (Second Chamber) of 7 September 2006 — Kingdom of Spain v Council of the European Union

(Case C-310/04) (1)

(Actions for annulment - Agriculture - Chapter 10a of Title IV of Regulation (EC) No 1782/2003, inserted by Article 1(20) of Regulation (EC) No 864/2004 - Amendment of the support scheme for cotton - Condition that the area is maintained at least until the boll opening - Compliance with Protocol 4 on cotton annexed to the Act of Accession of the Hellenic Republic to the European Communities - Concept of production aid - Obligation to state reasons - Misuse of powers - General principles of proportionality and protection of legitimate expectations)

(2006/C 281/10)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: M. Muñoz Pérez, Agent)

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

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

Re:

Annulment of Chapter 10a of Title IV of Council Regulation (EC) No 1782/2003 of 29 September 2003, inserted by Council Regulation (EC) No 864/2004 of 29 April 2004 amending Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers, and adapting it by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia to the European Union (OJ 2004 L 161, p. 48) — Alteration of the support scheme in the cotton sector — Aid to producers divided into two parts (single payment and aid linked to cotton production)

Operative part of the judgment

The Court:

| 1. | Annuls Chapter 10a of Title IV of Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001, inserted by Article 1(20) of Council Regulation (EC) No 864/2004 of 29 April 2004; |
| --- | --- |

1.

Annuls Chapter 10a of Title IV of Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001, inserted by Article 1(20) of Council Regulation (EC) No 864/2004 of 29 April 2004;

| 2. | Orders the effects of that annulment to be suspended until the adoption, within a reasonable time, of a new regulation; |
| --- | --- |

2.

Orders the effects of that annulment to be suspended until the adoption, within a reasonable time, of a new regulation;

| 3. | Orders the Council of the European Union to pay the costs; |
| --- | --- |

3.

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

| 4. | Orders the Commission of the European Communities to bear its own costs. |
| --- | --- |

4.

Orders the Commission of the European Communities to bear its own costs.

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(1)  OJ C 228, 11.9.2004.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/7 |
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18.11.2006

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Official Journal of the European Union

C 281/7

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Judgment of the Court (First Chamber) of 7 September 2006 (Reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Nowaco Germany GmbH v Hauptzollamt Hamburg-Jonas

(Case C-353/04) (1)

(Regulations (EEC) Nos 1538/91 and 3665/87 - Community Customs Code - Export refunds - Conditions for granting - Sound and fair marketable quality - Customs procedure - Export declaration - Physical check - Sample - Tolerated number of defective units - Uniform quality - Rights and obligations of the exporter and of the customs authority - Poultrymeat)

(2006/C 281/11)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Nowaco Germany GmbH

Defendant: Hauptzollamt Hamburg-Jonas

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of Commission Regulation (EEC) No 1538/91 of 5 June 1991 introducing detailed rules for implementing Regulation (EEC) No 1906/90 on certain marketing standards for poultry (OJ 1991 L 143, p. 11), and of Article 70(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) — Application for export refunds for frozen chicken — Conditions as to merchantable quality of products where examination of samples has shown that a proportion of the chicken did not meet the requirements laid down in Article 6 of Regulation (EEC) No 1538/91

Operative part of the judgment

The Court rules:

| 1. | For the purpose of establishing whether a product in respect of which an export refund is sought is of ‘sound and fair marketable quality’, Commission Regulation (EEC) No 1538/91 of 5 June 1991 introducing detailed rules for implementing Regulation (EEC) No 1906/90, as amended by Commission Regulation (EC) No 1000/96 of 4 June 1996, which lays down minimum quality requirements and tolerance margins, in particular Articles 6 and 7, applies. |
| --- | --- |

1.

For the purpose of establishing whether a product in respect of which an export refund is sought is of ‘sound and fair marketable quality’, Commission Regulation (EEC) No 1538/91 of 5 June 1991 introducing detailed rules for implementing Regulation (EEC) No 1906/90, as amended by Commission Regulation (EC) No 1000/96 of 4 June 1996, which lays down minimum quality requirements and tolerance margins, in particular Articles 6 and 7, applies.

| 2. | (a) | In circumstances such as those of the main proceedings, Article 70 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996, applies, subject to the proper conduct of the examination referred to therein, where it is necessary to establish whether a product in respect of which an export refund is sought is of ‘sound and fair marketable quality’. |
| --- | --- | --- |

2.

(a)

In circumstances such as those of the main proceedings, Article 70 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996, applies, subject to the proper conduct of the examination referred to therein, where it is necessary to establish whether a product in respect of which an export refund is sought is of ‘sound and fair marketable quality’.

| (b) | The legal fiction relating to uniform quality in the first subparagraph of Article 70(1) of Regulation No 2913/92, as amended by Regulation No 82/97, does not apply if the size of the sample taken is insufficient having regard to Article 7 of Regulation No 1538/91. |
| --- | --- |

(b)

The legal fiction relating to uniform quality in the first subparagraph of Article 70(1) of Regulation No 2913/92, as amended by Regulation No 82/97, does not apply if the size of the sample taken is insufficient having regard to Article 7 of Regulation No 1538/91.

| 3. | In circumstances such as those of the case in the main proceedings, it is for the national administrative and judicial authorities to establish the facts by taking into account all of the evidence. Such evidence may include available samples but also other information, in particular the examination account produced in accordance with Community legislation by the customs officer who carried out the physical checks. In the event that the facts cannot be conclusively established for the purpose of entitlement to the refund, it is for the national court to assess the exporter's conduct and that of the customs authority by establishing the extent to which each has, or has not, exercised its rights and fulfilled its obligations and to draw the appropriate conclusions concerning entitlement to the export refund. |
| --- | --- |

3.

In circumstances such as those of the case in the main proceedings, it is for the national administrative and judicial authorities to establish the facts by taking into account all of the evidence. Such evidence may include available samples but also other information, in particular the examination account produced in accordance with Community legislation by the customs officer who carried out the physical checks. In the event that the facts cannot be conclusively established for the purpose of entitlement to the refund, it is for the national court to assess the exporter's conduct and that of the customs authority by establishing the extent to which each has, or has not, exercised its rights and fulfilled its obligations and to draw the appropriate conclusions concerning entitlement to the export refund.

---

(1)  OJ C 262, 23.10.2004.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/7 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/7

---

Judgment of the Court (Grand Chamber) of 19 September 2006 (reference for a preliminary ruling from the Rechtbank van Koophandel te Brussel, Belgium) — Lidl Belgium GmbH & Co KG v Etablissementen Franz Colruyt NV

(Case C-356/04) (1)

(Directives 84/450/EEC and 97/55/EC - Misleading advertising - Comparative advertising - Conditions under which comparative advertising is permitted - Comparison of the general level of the prices charged by chains of stores - Comparison of the prices of a selection of products)

(2006/C 281/12)

Language of the case: Dutch

Referring court

Rechtbank van Koophandel te Brussel

Parties to the main proceedings

Applicant: Lidl Belgium GmbH & Co KG

Defendant: Etablissementen Franz Colruyt NV

Re:

Reference for a preliminary ruling — Rechtbank van Koophandel te Brussel — Interpretation of Article 3a(1)(a), (b) and (c) of Council Directive 84/450/EEC of 10 September 1984 concerning misleading and comparative advertising (OJ 1984 L 250, p. 17), as inserted by Directive 97/55/EC of the European Parliament and of the Council of 6 October 1997 (OJ 1997 L 290, p. 18) — Comparative advertising — Comparison of the general level of prices of an advertiser with that of its competitors without any indication as to which products have been compared in regard to their prices.

Operative part of the judgment

| 1. | The condition under which comparative advertising is permissible that is laid down by Article 3a(1)(b) of Council Directive 84/450/EEC of 10 September 1984 concerning misleading and comparative advertising, as amended by Directive 97/55/EC of the European Parliament and of the Council of 6 October 1997, must be interpreted as not precluding comparative advertising from relating collectively to selections of basic consumables sold by two competing chains of stores in so far as those selections each consist of individual products which, when viewed in pairs, individually satisfy the requirement of comparability laid down by that provision. |
| --- | --- |

1.

The condition under which comparative advertising is permissible that is laid down by Article 3a(1)(b) of Council Directive 84/450/EEC of 10 September 1984 concerning misleading and comparative advertising, as amended by Directive 97/55/EC of the European Parliament and of the Council of 6 October 1997, must be interpreted as not precluding comparative advertising from relating collectively to selections of basic consumables sold by two competing chains of stores in so far as those selections each consist of individual products which, when viewed in pairs, individually satisfy the requirement of comparability laid down by that provision.

| 2. | Article 3a(1)(c) of Directive 84/450, as amended by Directive 97/55, must be interpreted as meaning that the requirement, laid down by that provision, that the advertising ‘objectively compares’ the features of the goods at issue does not signify, in the event of comparison of the prices of a selection of comparable basic consumables sold by competing chains of stores or of the general level of the prices charged by them in respect of the range of comparable products which they sell, that the products and prices compared, that is to say both those of the advertiser and those of all of his competitors involved in the comparison, must be expressly and exhaustively listed in the advertisement. |
| --- | --- |

2.

Article 3a(1)(c) of Directive 84/450, as amended by Directive 97/55, must be interpreted as meaning that the requirement, laid down by that provision, that the advertising ‘objectively compares’ the features of the goods at issue does not signify, in the event of comparison of the prices of a selection of comparable basic consumables sold by competing chains of stores or of the general level of the prices charged by them in respect of the range of comparable products which they sell, that the products and prices compared, that is to say both those of the advertiser and those of all of his competitors involved in the comparison, must be expressly and exhaustively listed in the advertisement.

| 3. | Article 3a(1)(c) of Directive 84/450, as amended by Directive 97/55, must be interpreted as meaning that the following constitute, for the purposes of that provision, ‘verifiable’ features of goods sold by two competing chains of stores:






  — | the prices of those goods; |
| --- | --- | --- |

3.

Article 3a(1)(c) of Directive 84/450, as amended by Directive 97/55, must be interpreted as meaning that the following constitute, for the purposes of that provision, ‘verifiable’ features of goods sold by two competing chains of stores:

—

the prices of those goods;

| — | the general level of the respective prices charged by such chains of stores in respect of their selection of comparable products and the amount liable to be saved by consumers who purchase such products from one rather than the other of those chains, in so far as the goods in question do in fact form part of the selection of comparable products on whose basis that general price level has been determined. |
| --- | --- |

—

the general level of the respective prices charged by such chains of stores in respect of their selection of comparable products and the amount liable to be saved by consumers who purchase such products from one rather than the other of those chains, in so far as the goods in question do in fact form part of the selection of comparable products on whose basis that general price level has been determined.

| 4. | Article 3a(1)(c) of Directive 84/450, as amended by Directive 97/55, must be interpreted as meaning that a feature mentioned in comparative advertising satisfies the requirement of verifiability laid down by that provision, in cases where the details of the comparison which form the basis for the mention of that feature are not set out in the advertising, only if the advertiser indicates, in particular for the attention of the persons to whom the advertisement is addressed, where and how they may readily examine those details with a view to verifying, or, if they do not possess the skill required for that purpose, to having verified, the details and the feature in question as to their accuracy. |
| --- | --- |

4.

Article 3a(1)(c) of Directive 84/450, as amended by Directive 97/55, must be interpreted as meaning that a feature mentioned in comparative advertising satisfies the requirement of verifiability laid down by that provision, in cases where the details of the comparison which form the basis for the mention of that feature are not set out in the advertising, only if the advertiser indicates, in particular for the attention of the persons to whom the advertisement is addressed, where and how they may readily examine those details with a view to verifying, or, if they do not possess the skill required for that purpose, to having verified, the details and the feature in question as to their accuracy.

| 5. | Article 3a(1)(a) of Directive 84/450, as amended by Directive 97/55, must be interpreted as meaning that comparative advertising claiming that the advertiser's general price level is lower than his main competitors', where the comparison has related to a sample of products, may be misleading when the advertisement:






  — | does not reveal that the comparison related only to such a sample and not to all the advertiser's products, |
| --- | --- | --- |

5.

Article 3a(1)(a) of Directive 84/450, as amended by Directive 97/55, must be interpreted as meaning that comparative advertising claiming that the advertiser's general price level is lower than his main competitors', where the comparison has related to a sample of products, may be misleading when the advertisement:

—

does not reveal that the comparison related only to such a sample and not to all the advertiser's products,

| — | does not identify the details of the comparison made or inform the persons to whom it is addressed of the information source where such identification is possible, or |
| --- | --- |

—

does not identify the details of the comparison made or inform the persons to whom it is addressed of the information source where such identification is possible, or

| — | contains a collective reference to a range of amounts that may be saved by consumers who make their purchases from the advertiser rather than from his competitors without specifying individually the general level of the prices charged, respectively, by each of those competitors and the amount that consumers are liable to save by making their purchases from the advertiser rather than from each of the competitors. |
| --- | --- |

—

contains a collective reference to a range of amounts that may be saved by consumers who make their purchases from the advertiser rather than from his competitors without specifying individually the general level of the prices charged, respectively, by each of those competitors and the amount that consumers are liable to save by making their purchases from the advertiser rather than from each of the competitors.

---

(1)  OJ C 273, 6.11.2004.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/9 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/9

---

Judgment of the Court (Third Chamber) of 14 September 2006 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Centro di Musicologia Walter Stauffer v Finanzamt München für Körperschaften

(Case C-386/04) (1)

(Free movement of capital - Corporation tax - Exemption of rental income - Residence qualification - Charitable foundation governed by private law)

(2006/C 281/13)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Centro di Musicologia Walter Stauffer

Defendant: Finanzamt München für Körperschaften

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of Article 52 of the EC Treaty (now, after amendment, Article 43 EC), Article 58 of the EC Treaty (now Article 48 EC), Article 59 of the EC Treaty (now, after amendment, Article 49 EC) and Article 73b of the EC Treaty (now Article 56 EC) — National corporation tax legislation — Exemption for charitable foundations established under private law receiving income in the territory from the letting of property subject to the condition that those foundations are resident.

Operative part of the judgment

Article 73b of the EC Treaty, in conjunction with Article 73d of the EC Treaty, must be interpreted as precluding a Member State which exempts from corporation tax rental income received in its territory by charitable foundations which, in principle, have unlimited tax liability if they are established in that Member State, from refusing to grant the same exemption in respect of similar income to a charitable foundation established under private law solely on the ground that, as it is established in another Member State, that foundation has only limited tax liability in its territory.

---

(1)  OJ C 262, 23.10.2004.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/9 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/9

---

Judgment of the Court (Grand Chamber) of 19 September 2006 (references for a preliminary ruling from the Bundesverwaltungsgericht, Germany) — i-21 Germany GmbH and Arcor AG & Co. KG v Bundesrepublik Deutschland

(Joined Cases C-392/04 and C-422/04) (1)

(Telecommunication services - Directive 97/13/EC - Article 11(1) - Fees and charges for individual licences - Article 10 EC - Primacy of Community law - Legal certainty - Final administrative decision)

(2006/C 281/14)

Language of the cases: German

Referring court

Bundesverwaltungsgericht (Germany)

Parties to the main proceedings

Appellants: i-21 Germany GmbH (C-392/04), Arcor AG & Co. KG (C-422/04)

Respondent: Bundesrepublik Deutschland

Re:

Reference for a preliminary ruling — Bundesverwaltungsgericht — Interpretation of Article 10 EC and Article 11(1) of Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services (OJ 1997 L 117, p. 5) — Fees applicable to the undertakings which have individual licences, calculated to anticipate the national regulatory authority's general administrative costs over a period of 30 years

Operative part of the judgment

| 1. | Article 11(1) of Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services precludes the application of a fee for individual licences calculated by taking into account the regulatory body's general administrative costs linked to implementing those licences over a period of 30 years. |
| --- | --- |

1.

Article 11(1) of Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services precludes the application of a fee for individual licences calculated by taking into account the regulatory body's general administrative costs linked to implementing those licences over a period of 30 years.

| 2. | Article 10 EC, read in conjunction with Article 11(1) of Directive 97/13, requires the national court to ascertain whether legislation which is clearly incompatible with Community law, such as that on which the fee assessments at issue in the main proceedings are based, constitutes manifest unlawfulness within the meaning of the national law concerned. If that is the case, it is for the national court to draw the necessary conclusions under its national law with regard to the withdrawal of those assessments. |
| --- | --- |

2.

Article 10 EC, read in conjunction with Article 11(1) of Directive 97/13, requires the national court to ascertain whether legislation which is clearly incompatible with Community law, such as that on which the fee assessments at issue in the main proceedings are based, constitutes manifest unlawfulness within the meaning of the national law concerned. If that is the case, it is for the national court to draw the necessary conclusions under its national law with regard to the withdrawal of those assessments.

---

(1)  OJ C 273, 6.11.2004.

OJ C 284, 20.11.2006.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/10 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/10

---

Judgment of the Court (Grand Chamber) of 12 September 2006 (reference for a preliminary ruling from the Østre Landsret (Denmark)) — Laserdisken ApS v Kulturministeriet

(Case C-479/04) (1)

(Directive 2001/29/EC - Harmonisation of certain aspects of copyright and related rights in the information society - Article 4 - Distribution rights - Rule of exhaustion - Legal basis - International agreements - Competition policy - Principle of proportionality - Freedom of expression - Principle of equal treatment - Articles 151 EC and 153 EC)

(2006/C 281/15)

Language of the case: Danish

Referring court

Østre Landsret (Denmark)

Parties to the main proceedings

Applicant: Laserdisken ApS

Defendant: Kulturministeriet

Re:

Reference for a preliminary ruling — Østre Landsret — Validity and interpretation of Article 4(2) of 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 2001 L 167, p. 10) — Exhaustion of the rightholder's rights only as of the first sale or first other transfer of ownership in the Community by the rightholder or with his consent — Imports from third countries of DVDs of cinematographic works.

Operative part of the judgment

| 1. | Consideration of the first question does not reveal any information such as to affect the validity of Article 4(2) of 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. |
| --- | --- |

1.

Consideration of the first question does not reveal any information such as to affect the validity of Article 4(2) of 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.

| 2. | Article 4(2) of Directive 2001/29 is to be interpreted as precluding national rules providing for exhaustion of the distribution right in respect of the original or copies of a work placed on the market outside the European Community by the rightholder or with his consent. |
| --- | --- |

2.

Article 4(2) of Directive 2001/29 is to be interpreted as precluding national rules providing for exhaustion of the distribution right in respect of the original or copies of a work placed on the market outside the European Community by the rightholder or with his consent.

---

(1)  OJ C 31, 05.02.2005.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/10 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/10

---

Judgment of the Court (First Chamber) of 14 September 2006 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven — Netherlands) –J. Slob v Productschap Zuivel

(Case C-496/04) (1)

(Milk and milk products - Direct sales - Reference quantities - Overruns - Additional levy on milk - Obligation on producers to keep stock accounts - Article 7(1) and (3) of Regulation (EEC) No 536/93 - Supplementary national measures - Competence of the Member States)

(2006/C 281/16)

Language of the case: Dutch

Referring court

College van Beroep voor het bedrijfsleven

Parties to the main proceedings

Applicant: J. Slob

Defendant: Productschap Zuivel

Re:

Reference for a preliminary ruling — College van Beroep voor het Bedrijfsleven — Interpretation of Article 7(1)(f) and (3) of Commission Regulation (EEC) No 536/93 of 9 March 1993 laying down detailed rules on the application of the additional levy on milk and milk products (OJ 1993 L 57, p.12) — Scope of the obligation to keep stock accounts for producers with reference quantities for direct sales — Additional obligations imposed by a Member State — Question not posed by the national court — No reply given by the Court

Operative part of the judgment

| 1. | The first sentence of Article 7(1) of Commission Regulation (EEC) No 536/93 of 9 March 1993 laying down detailed rules on the application of the additional levy on milk and milk products must be interpreted as conferring discretion on a Member State to lay down rules, in so far as is necessary, imposing on producers of milk established in its territory supplementary obligations to keep records which are more extensive than the obligations under Article 7(1)(f). In exercising that discretion, the Member State must comply with the general principles of Community law. |
| --- | --- |

1.

The first sentence of Article 7(1) of Commission Regulation (EEC) No 536/93 of 9 March 1993 laying down detailed rules on the application of the additional levy on milk and milk products must be interpreted as conferring discretion on a Member State to lay down rules, in so far as is necessary, imposing on producers of milk established in its territory supplementary obligations to keep records which are more extensive than the obligations under Article 7(1)(f). In exercising that discretion, the Member State must comply with the general principles of Community law.

| 2. | Community law does not preclude legislation which requires milk producers to keep records of the quantity of butter produced and the use that it has been put to, even where the butter has been destroyed or used as feeding stuff, where, in the Member State concerned, it is found to be difficult to monitor effectively, on the basis of the Community requirements alone, the accuracy of statements of direct sales drawn up by producers. |
| --- | --- |

2.

Community law does not preclude legislation which requires milk producers to keep records of the quantity of butter produced and the use that it has been put to, even where the butter has been destroyed or used as feeding stuff, where, in the Member State concerned, it is found to be difficult to monitor effectively, on the basis of the Community requirements alone, the accuracy of statements of direct sales drawn up by producers.

---

(1)  OJ C 31, 5.2.2005.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/11 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/11

---

Judgment of the Court (Grand Chamber) of 19 September 2006 (reference for a preliminary ruling from the Cour administrative, Luxembourg) — Graham J. Wilson v Ordre des avocats du barreau de Luxembourg

(Case C-506/04) (1)

(Freedom of establishment - Directive 98/5/EC - Practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained - Conditions for registration with the competent authority in the host Member State - Prior examination of knowledge of the languages of the host Member State - Remedy before a court or tribunal in accordance with domestic law)

(2006/C 281/17)

Language of the case: French

Referring court

Cour administrative

Parties to the main proceedings

Applicant: Graham J. Wilson

Defendant: Ordre des avocats du barreau de Luxembourg

Re:

Reference for a preliminary ruling — Cour administrative (Luxembourg) — Interpretation of Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained (OJ 1998 L 77, p. 36) — Obligation to provide for a remedy before a court or tribunal in accordance with the provisions of domestic law against a decision refusing entry on the Bar register as a lawyer practising under his home-country professional title — Appeal to the Conseil disciplinaire et adminsitratif du barreau — National legislation making registration conditional on an oral examination intended to verify knowledge of the official languages of the host Member State

Operative part of the judgment

| 1) | Article 9 of Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained must be interpreted as meaning that it precludes an appeal procedure in which the decision refusing registration, referred to in Article 3 of that directive, must be challenged at first instance before a body composed exclusively of lawyers practising under the professional title of the host Member State and on appeal before a body composed for the most part of such lawyers, where the appeal before the supreme court of that Member State permits judicial review of the law only and not the facts. |
| --- | --- |

1)

Article 9 of Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained must be interpreted as meaning that it precludes an appeal procedure in which the decision refusing registration, referred to in Article 3 of that directive, must be challenged at first instance before a body composed exclusively of lawyers practising under the professional title of the host Member State and on appeal before a body composed for the most part of such lawyers, where the appeal before the supreme court of that Member State permits judicial review of the law only and not the facts.

| 2) | Article 3 of Directive 98/5 must be interpreted as meaning that the registration of a lawyer with the competent authority of a Member State other than the State where he obtained his qualification in order to practise there under his home-country professional title cannot be made subject to a prior examination of his proficiency in the languages of the host Member State. |
| --- | --- |

2)

Article 3 of Directive 98/5 must be interpreted as meaning that the registration of a lawyer with the competent authority of a Member State other than the State where he obtained his qualification in order to practise there under his home-country professional title cannot be made subject to a prior examination of his proficiency in the languages of the host Member State.

---

(1)  OJ C 31, 5.2.2005.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/12 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/12

---

Judgment of the Court (Second Chamber) of 7 September 2006 (reference for a preliminary ruling from the Cour de cassation — France) — Laboratoires Boiron SA v Union de recouvrement des cotisations de sécurité sociale et d'allocations familiales (Urssaf) de Lyon, assuming the rights and obligations of the Agence centrale des organismes de sécurité sociale (ACOSS),

(Case C-526/04) (1)

(State aid - Articles 87 and 88(3) CE - Tax on direct sales of medicines - Applicable to pharmaceutical laboratories rather than wholesale distributors - Prohibition on implementing a non-notified aid measure - Possibility of pleading that an aid measure is unlawful in order to obtain reimbursement of a charge - Compensation for discharging public service obligations imposed on wholesale distributors - Burden of proof in relation to overcompensation - Detailed rules laid down by national law - Prohibition on making reimbursement of a charge practically impossible or excessively difficult)

(2006/C 281/18)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicant: Laboratoires Boiron SA

Defendant: Union de recouvrement des cotisations de sécurité sociale et d'allocations familiales (Urssaf) de Lyon, assuming the rights and obligations of the Agence centrale des organismes de sécurité sociale (ACOSS)

Re:

Reference for a preliminary ruling — Cour de Cassation — Interpretation of Articles 86 and 87 — Classification as State aid of the absence of liability to a tax on wholesale sales of proprietary medicinal products by wholesalers subject to certain public service obligations in relation to their range, stocks and delivery times of products (wholesale distributors)

Operative part of the judgment

| 1. | Community law must be interpreted as meaning that a pharmaceutical laboratory liable to pay a contribution such as that provided for by Article 12 of Law No 97-1164 of 19 December 1997 on social security funding for 1998 is entitled to plead that the fact that wholesale distributors are not liable for that contribution constitutes State aid in order to obtain reimbursement of the part of the sums paid which corresponds to the economic advantage unfairly obtained by wholesale distributors. |
| --- | --- |

1.

Community law must be interpreted as meaning that a pharmaceutical laboratory liable to pay a contribution such as that provided for by Article 12 of Law No 97-1164 of 19 December 1997 on social security funding for 1998 is entitled to plead that the fact that wholesale distributors are not liable for that contribution constitutes State aid in order to obtain reimbursement of the part of the sums paid which corresponds to the economic advantage unfairly obtained by wholesale distributors.

| 2. | Community law does not preclude the application of rules of national law which make reimbursement of a mandatory contribution such as that provided for in Article 12 of Law No 97-1164 subject to proof by the claimant seeking reimbursement that the advantage derived by wholesale distributors from their not being liable to pay that contribution exceeds the costs which they bear in discharging the public service obligations imposed on them by the national rules and, in particular, that at least one of the conditions laid down in the judgment in Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I-7747 is not satisfied.
  However, in order to ensure compliance with the principle of effectiveness, if the national court finds that the fact of requiring a pharmaceutical laboratory such as Boiron to prove that wholesale distributors are overcompensated, and thus that the tax on direct sales amounts to State aid, is likely to make it impossible or excessively difficult for such evidence to be produced, since inter alia that evidence relates to data which such a laboratory will not have, the national court is required to use all procedures available to it under national law, including that of ordering the necessary measures of inquiry, in particular the production by one of the parties or a third party of a particular document. |
| --- | --- |

2.

Community law does not preclude the application of rules of national law which make reimbursement of a mandatory contribution such as that provided for in Article 12 of Law No 97-1164 subject to proof by the claimant seeking reimbursement that the advantage derived by wholesale distributors from their not being liable to pay that contribution exceeds the costs which they bear in discharging the public service obligations imposed on them by the national rules and, in particular, that at least one of the conditions laid down in the judgment in Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I-7747 is not satisfied.

However, in order to ensure compliance with the principle of effectiveness, if the national court finds that the fact of requiring a pharmaceutical laboratory such as Boiron to prove that wholesale distributors are overcompensated, and thus that the tax on direct sales amounts to State aid, is likely to make it impossible or excessively difficult for such evidence to be produced, since inter alia that evidence relates to data which such a laboratory will not have, the national court is required to use all procedures available to it under national law, including that of ordering the necessary measures of inquiry, in particular the production by one of the parties or a third party of a particular document.

---

(1)  OJ C 69, 19.03.2005.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/12 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/12

---

Judgment of the Court (First Chamber) of 14 September 2006 (reference for a preliminary ruling from the Finanzgericht München, Germany) — Hausgemeinschaft Jörg und Stefanie Wollny v Finanzamt Landshut

(Case C-72/05) (1)

(Sixth VAT Directive - Article 11A(1)(c) - Use of property forming part of the assets of a business for private purposes by a taxable person - Treatment of that use as a supply of services for consideration - Determination of the taxable amount - Definition of full cost to the taxable person of providing those services)

(2006/C 281/19)

Language of the case: German

Referring court

Finanzgericht München, Germany

Parties to the main proceedings

Applicant: Hausgemeinschaft Jörg und Stefanie Wollny

Defendant: Finanzamt Landshut

Re:

Reference for a preliminary ruling — Finanzgericht München — Interpretation of Article 11(A)(1)(c) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Taxable amount of supply of service consisting of use of part of a building forming, in its entirety, part of the assets of a business for the private use of the taxable person — Definition of ‘full cost’ to the taxable person

Operative part of the judgment

Article 11(A)(1)(c) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 95/7/EC of 10 April 1995, is to be interpreted as meaning that it does not preclude the taxable amount for VAT in respect of the private use of part of a building treated by a taxable person as forming, in its entirety, part of the assets of his business from being fixed at a portion of the acquisition or construction costs of the building, established in accordance with the length of the period for adjustment of deductions concerning VAT provided for in Article 20 of that directive.

That taxable amount must include the costs of acquiring the land on which the building is constructed when that acquisition has been subject to VAT and the taxable person has deducted that tax.

---

(1)  OJ C 93, 16.4.2005.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/13 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/13

---

Judgment of the Court (First Chamber) of 14 September 2006 — Commission of the European Communities v Hellenic Republic

(Case C-82/05) (1)

(Failure of a Member State to fulfil obligations - Free movement of goods - Article 28 EC - Quantitative restrictions - Measures having equivalent effect - Marketing of frozen bakery products)

(2006/C 281/20)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: M. Patakia, Agent)

Defendant: Hellenic Republic (represented by: N. Dafniou and M. Apessos, Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 28 EC — National legislation considering the ‘bake-off’ process (thawing and reheating of pre-baked and frozen bread) to be a process of manufacturing bread and allowing only bakeries to sell bread manufactured in that way.

Operative part of the judgment

The Court:

| 1. | Declares that, by treating the process of final baking or reheating of ‘bake-off’ products in the same way as the full process of manufacturing bread and by making it subject to the conditions prescribed by the national legislation with regard to bakeries, the Hellenic Republic has failed to fulfil its obligations under Article 28 EC. |
| --- | --- |

1.

Declares that, by treating the process of final baking or reheating of ‘bake-off’ products in the same way as the full process of manufacturing bread and by making it subject to the conditions prescribed by the national legislation with regard to bakeries, the Hellenic Republic has failed to fulfil its obligations under Article 28 EC.

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

2.

Orders the Hellenic Republic to pay the costs.

---

(1)  OJ C 93, 16.04.2005

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/13 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/13

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Judgment of the Court (Second Chamber) of 14 September 2006 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven — Netherlands ) — Stichting Zuid-Hollandse Milieufederatie v Minister van Landbouw, Natuur en Voedselkwaliteit

(Case C-138/05) (1)

(Authorisation for the placing of plant protection and biocidal products on the market - Directive 91/414/EEC - Article 8 - Directive 98/8/EC - Article 16 - Power of Member States during the transitional period)

(2006/C 281/21)

Language of the case: Dutch

Referring court

College van Beroep voor het bedrijfsleven

Parties to the main proceedings

Applicant: Stichting Zuid-Hollandse Milieufederatie

Defendant: Minister van Landbouw, Natuur en Voedselkwaliteit

Intervener: LTO Nederland

Re:

Reference for a preliminary ruling — College van Beroep voor het Bedrijfsleven — Interpretation of Articles 4, 8(2) and (3) and 23 of Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1) — Interpretation of Article 16 of Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market (OJ 1998 L 123, p. 1) — Prior authorisation of placing on the market — Period prescribed for transposition elapsed — Application by the national court — Authorisation for placing on the market products already there two years after the directive was notified — Re-examination of the products

Operative part of the judgment

| 1. | Article 16(1) of Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market has the same meaning as Article 8(2) of Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market. |
| --- | --- |

1.

Article 16(1) of Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market has the same meaning as Article 8(2) of Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market.

| 2. | Article 8(2) of Directive 91/414 does not constitute a ‘standstill’ obligation. However, the second paragraph of Article 10 EC and the third paragraph of Article 249 EC, and Directive 91/414, require that during the transitional period prescribed in Article 8(2) of that directive the Member States refrain from adopting any measures liable seriously to compromise the result prescribed by that directive. More specifically, Member States may not, during that transitional period, amend the legislation applicable in such a manner as to allow themselves to authorise a plant protection product which comes within the scope of that provision, without duly considering the effects which that product might have on human and animal health and on the environment. Likewise, a decision relating to an authorisation may be taken only on the basis of a dossier comprising all necessary information enabling a genuine assessment of those effects to be made. |
| --- | --- |

2.

Article 8(2) of Directive 91/414 does not constitute a ‘standstill’ obligation. However, the second paragraph of Article 10 EC and the third paragraph of Article 249 EC, and Directive 91/414, require that during the transitional period prescribed in Article 8(2) of that directive the Member States refrain from adopting any measures liable seriously to compromise the result prescribed by that directive. More specifically, Member States may not, during that transitional period, amend the legislation applicable in such a manner as to allow themselves to authorise a plant protection product which comes within the scope of that provision, without duly considering the effects which that product might have on human and animal health and on the environment. Likewise, a decision relating to an authorisation may be taken only on the basis of a dossier comprising all necessary information enabling a genuine assessment of those effects to be made.

| 3. | Article 8(2) of Council Directive 91/414 is to be interpreted as meaning that, where a Member State authorises the placing on the market on its territory of plant protection products containing active substances not referred to in Annex I to that directive that were already on the market two years after the date of notification of the directive, it is not required to comply with the provisions of Article 4 or Article 8(3) of that directive. |
| --- | --- |

3.

Article 8(2) of Council Directive 91/414 is to be interpreted as meaning that, where a Member State authorises the placing on the market on its territory of plant protection products containing active substances not referred to in Annex I to that directive that were already on the market two years after the date of notification of the directive, it is not required to comply with the provisions of Article 4 or Article 8(3) of that directive.

| 4. | It is for the national court to assess whether the evaluation carried out pursuant to Article 16aa of the Law on pesticides of 1962 (Bestrijdingsmiddelenwet), as amended by the Law of 6 February 2003, corresponds to all the characteristics of a ‘review’ within the meaning of Article 8(3) of Directive 91/414, in particular those referred to in paragraphs 53 and 54 of the present judgment. |
| --- | --- |

4.

It is for the national court to assess whether the evaluation carried out pursuant to Article 16aa of the Law on pesticides of 1962 (Bestrijdingsmiddelenwet), as amended by the Law of 6 February 2003, corresponds to all the characteristics of a ‘review’ within the meaning of Article 8(3) of Directive 91/414, in particular those referred to in paragraphs 53 and 54 of the present judgment.

| 5. | Article 8(3) of Directive 91/414 is to be interpreted as meaning that it contains only provisions relating to the provision of data prior to a review. |
| --- | --- |

5.

Article 8(3) of Directive 91/414 is to be interpreted as meaning that it contains only provisions relating to the provision of data prior to a review.

---

(1)  OJ C 143, 11.06.2005.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/14 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/14

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Judgment of the Court (Grand Chamber) of 19 September 2006 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-193/05) (1)

(Failure of a Member State to fulfil obligations - Freedom of establishment - Directive 98/5/EC - Practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained - Prior examination of knowledge of the languages of the host Member State - Prohibition on being a person authorised to accept service (domiciliataire) on behalf of companies - Requirement to produce each year the certificate of registration with the competent authority of the home Member State)

(2006/C 281/22)

Language of the case: French

Parties

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

Defendant: Grand Duchy of Luxembourg (represented by: S. Schreiner, Agent, and L. Dupong, avocat,)

Re:

Failure of a Member State to fulfil obligations — Infringement of Articles 2, 3 and 5 of Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained (OJ 1998 L 77, p. 36) — Language testing — Prohibition on being a person authorised to accept service on behalf of companies — Obligation to reproduce each year the certificate from the home Member State.

Operative part of the judgment

| 1. | By making registration with the competent national authorities subject to a prior language test for lawyers who have obtained their qualification in a Member State other than the Grand Duchy of Luxembourg and who wish to practise under their home-country professional title in the latter Member State, by prohibiting those lawyers from being persons authorised to accept service on behalf of companies, and by requiring them to produce each year a certificate of registration with the competent authority of their home Member State, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained. |
| --- | --- |

1.

By making registration with the competent national authorities subject to a prior language test for lawyers who have obtained their qualification in a Member State other than the Grand Duchy of Luxembourg and who wish to practise under their home-country professional title in the latter Member State, by prohibiting those lawyers from being persons authorised to accept service on behalf of companies, and by requiring them to produce each year a certificate of registration with the competent authority of their home Member State, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained.

| 2. | The Grand Duchy of Luxembourg is ordered to pay the costs. |
| --- | --- |

2.

The Grand Duchy of Luxembourg is ordered to pay the costs.

---

(1)  OJ C 155, 25.6.2005.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/15 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/15

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Judgment of the Court (Third Chamber) of 14 September 2006 (reference for a preliminary ruling from the Commissione tributaria di primo grado di Trento — Italy) — Stradasfalti Srl v Agenzia delle Entrate — Ufficio di Trento

(Case C-228/05) (1)

(Sixth VAT Directive - Articles 17(7) and 29 - Right to deduct input VAT)

(2006/C 281/23)

Language of the case: Italian

Referring court

Commissione tributaria di primo grado di Trento

Parties to the main proceedings

Applicant: Stradasfalti Srl

Defendant: Agenzia delle Entrate — Ufficio di Trento

Re:

Reference for a preliminary ruling — Commissione tributaria di primo grado di Trento — Interpretation of Articles 17(7) and 29 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Right to deduct VAT on inputs — National provision restricting the right to deduct without consulting the committee provided for under Article 29 of the directive

Operative part of the judgment

The Court rules:

| 1. | The first sentence of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment requires the Member States, in order to respect the procedural obligation of consultation laid down by Article 29 of that directive, to inform the Advisory Committee on value added tax established by that article that they intend to adopt a national measure derogating from the general system of deducting value added tax and to provide that committee with sufficient information to enable it to examine the measure in full knowledge of the facts. |
| --- | --- |

1.

The first sentence of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment requires the Member States, in order to respect the procedural obligation of consultation laid down by Article 29 of that directive, to inform the Advisory Committee on value added tax established by that article that they intend to adopt a national measure derogating from the general system of deducting value added tax and to provide that committee with sufficient information to enable it to examine the measure in full knowledge of the facts.

| 2. | The first sentence of Article 7(7) of the Sixth Directive 77/388 must be interpreted as not authorising a Member State to exclude goods from the system of deducting value added tax without first consulting the Advisory Committee on value added tax established by Article 29 of that directive. Nor does that provision authorise a Member State to adopt measures excluding goods from the system of deducting that tax which contain no indication as to their limitation in time and/or which form part of a body of structural adjustment measures whose aim is to reduce the budget deficit and allow State debt to be repaid. |
| --- | --- |

2.

The first sentence of Article 7(7) of the Sixth Directive 77/388 must be interpreted as not authorising a Member State to exclude goods from the system of deducting value added tax without first consulting the Advisory Committee on value added tax established by Article 29 of that directive. Nor does that provision authorise a Member State to adopt measures excluding goods from the system of deducting that tax which contain no indication as to their limitation in time and/or which form part of a body of structural adjustment measures whose aim is to reduce the budget deficit and allow State debt to be repaid.

| 3. | In so far as an exception from the system of deductions has not been established in accordance with Article 17(7) of the Sixth Directive, the national tax authorities may not rely as against a taxable person on a provision derogating from the principle of the right to deduct value added tax set out in Article 17(1) of that directive. A taxable person which has been subject to that derogating provision must be able to recalculate its value added tax debt in accordance with Article 17(2) of the Sixth Directive 77/388, in so far as the goods and services have been used for the purposes of taxable transactions. |
| --- | --- |

3.

In so far as an exception from the system of deductions has not been established in accordance with Article 17(7) of the Sixth Directive, the national tax authorities may not rely as against a taxable person on a provision derogating from the principle of the right to deduct value added tax set out in Article 17(1) of that directive. A taxable person which has been subject to that derogating provision must be able to recalculate its value added tax debt in accordance with Article 17(2) of the Sixth Directive 77/388, in so far as the goods and services have been used for the purposes of taxable transactions.

---

(1)  OJ C 193, 6. 8. 2005.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/16 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/16

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Judgment of the Court (Second Chamber) of 14 September 2006 (reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof — Germany) — Bund Naturschutz in Bayern eV, Johann Märkl, Ludwig Neumair, Matthias Maier, Josef Hörmann, Christine Hörmann, Albert Hörmann, Maria Rimpfl, Georg Rimpfl, Eva Rimpfl, Karl Kressierer, Magdelena Kressierer, Anton Wastl, Amalie Wastl, Richard Westenthanner, Barbara Westenthanner, Angelika Graubner-Riedelsheimer, Michael Graubner, Wolfram Graubner, Sylvia Stracke, Eva Maria Thiel, Friederike Nischwitz, Georg Daller v Freistaat Bayern

(Case C-244/05) (1)

(Conservation of natural habitats and of wild fauna and flora - Directive 92/43/EEC - Protection regime before the inclusion of a habitat in the list of sites of Community importance)

(2006/C 281/24)

Language of the case: German

Referring court

Bayerischer Verwaltungsgerichtshof — Germany

Parties to the main proceedings

Applicants: Bund Naturschutz in Bayern eV, Johann Märkl, Ludwig Neumair, Matthias Maier, Josef Hörmann, Christine Hörmann, Albert Hörmann, Maria Rimpfl, Georg Rimpfl, Eva Rimpfl, Karl Kressierer, Magdelena Kressierer, Anton Wastl, Amalie Wastl, Richard Westenthanner, Barbara Westenthanner, Angelika Graubner-Riedelsheimer, Michael Graubner, Wolfram Graubner, Sylvia Stracke, Eva Maria Thiel, Friederike Nischwitz, Georg Daller

Defendant: Freistaat Bayern

Re:

Reference for a preliminary ruling — Bayerischer Verwaltungsgerichtshof — Interpretation of Article 3(1) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7) and of Article 10(2) of the EC Treaty — Protection measures required for sites which could be designated sites of Community importance, which appear on the national list sent to the Commission but have not yet been included on the list of sites adopted by the Commission — Possibility allowed by national legislation of temporarily prohibiting alteration of the state of such sites — Route of a motorway

Operative part of the judgment

The Court rules that:

| 1. | The appropriate protection regime applicable to sites which appear on a national list transmitted to the Commission, under Article 4(2) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, requires Member States not to authorise interventions which incur the risk of seriously compromising the ecological characteristics of those sites. |
| --- | --- |

1.

The appropriate protection regime applicable to sites which appear on a national list transmitted to the Commission, under Article 4(2) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, requires Member States not to authorise interventions which incur the risk of seriously compromising the ecological characteristics of those sites.

| 2. | Member States must, in accordance with the provisions of national law, take all the measures necessary to avoid interventions which incur the risk of seriously compromising the ecological characteristics of the sites which appear on the national list transmitted to the Commission. It is for the national court to assess whether that is the case. |
| --- | --- |

2.

Member States must, in accordance with the provisions of national law, take all the measures necessary to avoid interventions which incur the risk of seriously compromising the ecological characteristics of the sites which appear on the national list transmitted to the Commission. It is for the national court to assess whether that is the case.

---

(1)  OJ C 205, 20.08.2005.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/16 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/16

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Judgment of the Court (Second Chamber) of 14 September 2006 — Commission of the European Communities v Maria Dolores Fernández Gómez

(Case C-417/05 P) (1)

(Appeals - Temporary staff - Article 2(a) of the CEOS - Period completed within the Commission as a national expert on secondment - Application for annulment - Admissibility - Request under Article 90 (1) of the Staff Regulations - Definition - Measure adversely affecting an official)

(2006/C 281/25)

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by: D. Martin and L. Lozano Palacios, Agents)

Other party to the proceedings: Maria Dolores Fernández Gómez (represented by: J. Iturriagagoitia Bassas, lawyer)

Re:

Appeal brought against the judgment of the Court of First Instance (First Chamber) in Case T-272/03 Fernández Gómez v Commission [2005] by which the Court of First Instance annulled the decision of the Authority Authorised to Conclude Contracts of Employment, of 12 May 2003, rejecting the application for renewal of the applicant's contract and by which it ordered the Commission to pay the applicant the sum of EUR 50 000 to compensate for the damage suffered.

Operative part of the judgment

| 1. | The judgment of the Court of First Instance of 13 September 2005 in Case T-272/03 Fernández Gómez v Commission is set aside; |
| --- | --- |

1.

The judgment of the Court of First Instance of 13 September 2005 in Case T-272/03 Fernández Gómez v Commission is set aside;

| 2. | The action brought by Ms Fernández Gómez before the Court of First Instance of the European Communities for the annulment of the decision of the Authority Authorised to Conclude Contracts of Employment of 12 May 2003 rejecting the application for renewal of Ms Fernández Gómez's contract and for compensation in respect of the damage which allegedly resulted from that decision is dismissed as inadmissible; |
| --- | --- |

2.

The action brought by Ms Fernández Gómez before the Court of First Instance of the European Communities for the annulment of the decision of the Authority Authorised to Conclude Contracts of Employment of 12 May 2003 rejecting the application for renewal of Ms Fernández Gómez's contract and for compensation in respect of the damage which allegedly resulted from that decision is dismissed as inadmissible;

| 3. | The parties are ordered to bear their own costs as regards both the proceedings at first instance and the appeal. |
| --- | --- |

3.

The parties are ordered to bear their own costs as regards both the proceedings at first instance and the appeal.

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(1)  OJ C 10, 14.1.2006.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/17 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/17

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Judgment of the Court (Fourth Chamber) of 21 September 2006 — Commission of the European Communities v Grand-Duchy of Luxembourg

(Case C-100/06) (1)

(Failure of a Member State to fulfil obligations - Directive 2003/66/EC - Energy labelling of household electric refrigerators, freezers and their combinations - Failure to transpose within the prescribed period)

(2006/C 281/26)

Language of the case: French

Parties

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

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

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, the measures necessary to comply with Commission Directive 2003/66/EC of 3 July 2003 amending Directive 94/2/EC implementing Council Directive 92/75/EEC with regard to energy labelling of household electric refrigerators, freezers and their combinations (OJ 2003 L 170, p. 10)

Operative part of the judgment

The Court:

| 1. | Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Commission Directive 2003/66/EC of 3 July 2003 amending Directive 94/2/EC implementing Council Directive 92/75/EEC with regard to energy labelling of household electric refrigerators, freezers and their combinations, the Grand-Duchy of Luxembourg has failed to fulfil its obligations under that directive. |
| --- | --- |

1.

Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Commission Directive 2003/66/EC of 3 July 2003 amending Directive 94/2/EC implementing Council Directive 92/75/EEC with regard to energy labelling of household electric refrigerators, freezers and their combinations, the Grand-Duchy of Luxembourg has failed to fulfil its obligations under that directive.

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

2.

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

---

(1)  OJ C 86, 08.04.2006

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/17 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/17

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Reference for a preliminary ruling from the Rechtbank Amsterdam (Netherlands) lodged on 31 July 2006 — K.D. Chuck v Raad van bestuur van de Sociale Verzekeringsbank

(Case C-331/06)

(2006/C 281/27)

Language of the case: Dutch

Referring court

Rechtbank Amsterdam

Parties to the main proceedings

Applicant: K.D. Chuck

Defendant: Raad van bestuur van de Sociale Verzekeringsbank

Question referred

Where a worker is resident outside the Community on the date on which he reaches pensionable age, should Article 48 of the Regulation (1) be applied in the same way as in a case where the worker concerned is resident in the territory of the Community?

---

(1)  Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (English special edition: Series I Chapter 1971(II) p. 416).

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/18 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/18

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Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 7 August 2006 — Bayerischer Rundfunk, Deutschland Radio, Hessischer Rundfunk, Mitteldeutscher Rundfunk, Norddeutscher Rundfunk, Radio Bremen, Rundfunk Berlin-Brandenburg, Saarländischer Rundfunk, Südwestrundfunk, Westdeutscher Rundfunk, Zweites Deutsches Fernsehen v GEWA, Gesellschaft für Gebäudereinigung und Wartung mbH

(Case C-337/06)

(2006/C 281/28)

Language of the case: German

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Appellants: Bayerischer Rundfunk, Bayerischer Rundfunk, Deutschland Radio, Hessischer Rundfunk, Mitteldeutscher Rundfunk, Norddeutscher Rundfunk, Radio Bremen, Rundfunk Berlin-Brandenburg, Saarländischer Rundfunk, Südwestrundfunk, Westdeutscher Rundfunk, Zweites Deutsches Fernsehen

Respondent: GEWA, Gesellschaft für Gebäudereinigung und Wartung mbH

Intervening party: Heinz W. Warnecke, trading as Großbauten Spezial Reinigung

Questions referred

| 1. | Where it appears in the first alternative of letter (c) of the second subparagraph of Article 1(9) of Directive 2004/18/EC (1), is the term ‘financed ... by the State’ to be interpreted as including indirect financing given to bodies by means of fees imposed, on persons who have receiving equipment available for use, by the State pursuant to the obligation imposed on it by constitutional law to ensure the independent financing and existence of those bodies? |
| --- | --- |

1.

Where it appears in the first alternative of letter (c) of the second subparagraph of Article 1(9) of Directive 2004/18/EC (1), is the term ‘financed ... by the State’ to be interpreted as including indirect financing given to bodies by means of fees imposed, on persons who have receiving equipment available for use, by the State pursuant to the obligation imposed on it by constitutional law to ensure the independent financing and existence of those bodies?

| 2. | If the first question is answered in the affirmative, where it appears in the first alternative of letter (c) of the second subparagraph of Article 1(9) of Directive 2004/18/EC, is the term ‘financed ... by the State’ to be interpreted as being satisfied only in circumstances in which the State has direct influence on the award of contracts by the body financed by the State? |
| --- | --- |

2.

If the first question is answered in the affirmative, where it appears in the first alternative of letter (c) of the second subparagraph of Article 1(9) of Directive 2004/18/EC, is the term ‘financed ... by the State’ to be interpreted as being satisfied only in circumstances in which the State has direct influence on the award of contracts by the body financed by the State?

| 3. | If the second question is answered in the negative, is letter (c) of the second subparagraph of Article 1(9) of Directive 2004/18/EC to be interpreted, in the light of Article 16(b), as meaning that the only services removed from the Directive's scope of application are those specified in Article 16(b) and that other services which are not related to programme material but are of a subsidiary or ancillary nature are within the Directive's scope of application (by argumentum a contrario)? |
| --- | --- |

3.

If the second question is answered in the negative, is letter (c) of the second subparagraph of Article 1(9) of Directive 2004/18/EC to be interpreted, in the light of Article 16(b), as meaning that the only services removed from the Directive's scope of application are those specified in Article 16(b) and that other services which are not related to programme material but are of a subsidiary or ancillary nature are within the Directive's scope of application (by argumentum a contrario)?

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(1)  OJ L 134, p. 114.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/18 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/18

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Reference for a preliminary ruling from the Verwaltungsgericht Chemnitz (Germany) lodged on 8 August 2006 — Peter Funk v Stadt Chemnitz

(Case C-343/06)

(2006/C 281/29)

Language of the case: German

Referring court

Verwaltungsgericht Chemnitz

Parties to the main proceedings

Applicant: Peter Funk

Defendant: Stadt Chemnitz

Question(s) referred

| 1. | Is a Member State permitted, in conformity with Article 1(2) and Article 8(2) and (4) of Council Directive 91/439/EEC (1) of 29 July 1991, to require a holder of a driving licence issued in another Member State to apply to the national authority of the first Member State for recognition of the right to drive in its territory where the holder of the foreign EU driving licence has previously, in the territory of the first Member State, had his driving licence withdrawn or cancelled for some reason? |
| --- | --- |

1.

Is a Member State permitted, in conformity with Article 1(2) and Article 8(2) and (4) of Council Directive 91/439/EEC (1) of 29 July 1991, to require a holder of a driving licence issued in another Member State to apply to the national authority of the first Member State for recognition of the right to drive in its territory where the holder of the foreign EU driving licence has previously, in the territory of the first Member State, had his driving licence withdrawn or cancelled for some reason?

If not:

| 2. | Are the combined provisions of Article 1(2) and Article 8(2) and (4) of Directive 91/439/EEC to be interpreted as meaning that a Member State within its territory may refuse to recognise a right to drive under a driving licence issued by another Member State where the holder of the foreign EU driving licence has previously, in the territory of the first Member State, had his driving licence withdrawn by the administrative authority where the law of the first Member State considers that in the case of administrative measures for the withdrawal or cancellation of a driving licence there is no ban on its reissue and where entitlement to the reissue of a driving licence does not arise until the person concerned has provided evidence of aptitude to drive as a material prerequisite for the reissue of the driving licence in the form of a medical/psychological report regulated in more detail under national law, on an order by the administrative authority? |
| --- | --- |

2.

Are the combined provisions of Article 1(2) and Article 8(2) and (4) of Directive 91/439/EEC to be interpreted as meaning that a Member State within its territory may refuse to recognise a right to drive under a driving licence issued by another Member State where the holder of the foreign EU driving licence has previously, in the territory of the first Member State, had his driving licence withdrawn by the administrative authority where the law of the first Member State considers that in the case of administrative measures for the withdrawal or cancellation of a driving licence there is no ban on its reissue and where entitlement to the reissue of a driving licence does not arise until the person concerned has provided evidence of aptitude to drive as a material prerequisite for the reissue of the driving licence in the form of a medical/psychological report regulated in more detail under national law, on an order by the administrative authority?

If not:

| 3. | Are the combined provisions of Article 1(2) and Article 8(2) and (4) of Directive 91/439/EEC to be interpreted as meaning that a Member State within its territory may refuse to recognise a right to drive under a driving licence issued by another Member State where the holder of the foreign EU driving licence has previously, in the territory of the first Member State, had his driving licence withdrawn or cancelled for some reason by the administrative authorities and where it is to be concluded on the basis of objective evidence (non-residence in the Member State issuing the driving licence or the failure of an application for the national driving licence to be restored) that the only reason for acquiring the foreign EU driving licence was to circumvent the strict substantive requirements of national procedure for the restoration of a driving licence, particularly the need for a medical/psychological report? |
| --- | --- |

3.

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

---

(1)  OJ L 237, p.1.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/19 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/19

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Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat im Land Niederösterreich (Austria) lodged on 10 August 2006 — Gottfried Heinrich

(Case C-345/06)

(2006/C 281/30)

Language of the case: German

Referring court

Unabhängiger Verwaltungssenat im Land Niederösterreich

Parties to the main proceedings

Applicant: Gottfried Heinrich

Questions referred

| 1. | Do documents within the meaning of Article 2(3) of 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 (1) include acts which are required to be published in the Official Journal of the European Union pursuant to Article 254 EC? |
| --- | --- |

1.

Do documents within the meaning of Article 2(3) of 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 (1) include acts which are required to be published in the Official Journal of the European Union pursuant to Article 254 EC?

| 2. | Do regulations or parts thereof have binding force if, contrary to the requirement of Article 254(2) EC, they are not published in the Official Journal of the European Union? |
| --- | --- |

2.

Do regulations or parts thereof have binding force if, contrary to the requirement of Article 254(2) EC, they are not published in the Official Journal of the European Union?

---

(1)  OJ L 145, p. 43.

---

| 18.11.2006 | EN | Official Journal of the European Union | C 281/19 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/19

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Reference for a preliminary ruling from the Tribunale Amministrativo Regionale di Brescia (Italy) lodged on 17 August 2006 — ASM Brescia S.p.A. v Comune di Rodengo Saiano

(Case C-347/06)

(2006/C 281/31)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale di Brescia

Parties to the main proceedings

Applicant: ASM Brescia S.p.A.

Defendant: Comune di Rodengo Saiano

Questions referred

| (1) | Is an automatic and generalised extension till 31 December 2007 of current concessions for the distribution of natural gas, originally granted without any previous tender procedure, contrary to Articles 43, 49 and 86(1) of the Treaty, and the principles of equal treatment, non-discrimination and transparency? |
| --- | --- |

(1)

Is an automatic and generalised extension till 31 December 2007 of current concessions for the distribution of natural gas, originally granted without any previous tender procedure, contrary to Articles 43, 49 and 86(1) of the Treaty, and the principles of equal treatment, non-discrimination and transparency?

| (2) | Are subsequent automatic extensions till 31 December 2009 of current concessions for the distribution of natural gas, originally granted without any previous tender procedure, contrary to Articles 43, 49 and 86(1) of the Treaty, and the principles of equal treatment, non-discrimination and transparency in the following cases:






  (a) | when the holder of the concession has carried out a merger enabling it to serve a number of customers twice as great as the larger of the companies was able to; |
| --- | --- | --- |

(2)

Are subsequent automatic extensions till 31 December 2009 of current concessions for the distribution of natural gas, originally granted without any previous tender procedure, contrary to Articles 43, 49 and 86(1) of the Treaty, and the principles of equal treatment, non-discrimination and transparency in the following cases:

(a)

when the holder of the concession has carried out a merger enabling it to serve a number of customers twice as great as the larger of the companies was able to;

| (b) | when the holder of the concession has acquired more than 100 000 final users, or it supplies more than 100 million cubic metres of gas a year or its field of operations is at least as great as the whole territory of the province; |
| --- | --- |

(b)

when the holder of the concession has acquired more than 100 000 final users, or it supplies more than 100 million cubic metres of gas a year or its field of operations is at least as great as the whole territory of the province;

| (c) | when at least 40 % of the concession-holder's share capital has been transferred to private shareholders? |
| --- | --- |

(c)

when at least 40 % of the concession-holder's share capital has been transferred to private shareholders?

| (3) | Is the extension of current concessions for the distribution of natural gas, both in the case described in the first question and in the cases described in the second, contrary to the fourth, eighth, tenth and eighteenth recitals in the preamble to Directive 2003/55/EC (1) of 26 June 2003, and to Article 23(1) thereof, to Article 10 of the Treaty and to the principles of reasonableness and proportionality, having particular regard to:






  (a) | the fact that the States are obliged to attain the objective of liberalising the market in natural gas before the dead-line of 1 July 2007; |
| --- | --- | --- |

(3)

Is the extension of current concessions for the distribution of natural gas, both in the case described in the first question and in the cases described in the second, contrary to the fourth, eighth, tenth and eighteenth recitals in the preamble to Directive 2003/55/EC (1) of 26 June 2003, and to Article 23(1) thereof, to Article 10 of the Treaty and to the principles of reasonableness and proportionality, having particular regard to:

(a)

the fact that the States are obliged to attain the objective of liberalising the market in natural gas before the dead-line of 1 July 2007;

| (b) | the fact that the States are prohibited from adopting or maintaining in force domestic legislation incompatible with the liberalisation of the market in natural gas; |
| --- | --- |

(b)

the fact that the States are prohibited from adopting or maintaining in force domestic legislation incompatible with the liberalisation of the market in natural gas;

| (c) | the fact that the States are obliged to set a reasonable term for the duration of the transitional period and subject it to objective requirements? |
| --- | --- |

(c)

the fact that the States are obliged to set a reasonable term for the duration of the transitional period and subject it to objective requirements?

---

(1)  OJ L 176, p. 57.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/20 |
| --- | --- | --- | --- |

18.11.2006

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Official Journal of the European Union

C 281/20

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Reference for a preliminary ruling from the Verwaltungsgericht Darmstadt (Germany) lodged on 21 August 2006 — Murat Polat v Stadt Rüsselsheim

(Case C-349/06)

(2006/C 281/32)

Language of the case: German

Referring court

Verwaltungsgericht Darmstadt

Parties to the main proceedings

Applicant: Murat Polat

Defendant: Stadt Rüsselsheim

Questions referred

| 1. | Is it compatible with Article 59 of the Additional Protocol to the Agreement of 12 September 1963 establishing an Association between the European Economic Community and Turkey (1) for the transitional phase if a Turkish national who, as a child, joined his parents who were employed as workers in the Federal Republic of Germany, does not lose his right of residence derived from the right under the second [indent] of the first sentence of Article 7 of Decision No 1/80 of the EEC/Turkey Association Council (Decision No 1/80) to free access to any paid employment — except in cases under Article 14 of Decision No 1/80 or where he leaves the host Member State for a significant period of time without legitimate reason — even in the case where he has attained the age of 21 and no longer lives with his parents or is maintained by them? |
| --- | --- |

1.

Is it compatible with Article 59 of the Additional Protocol to the Agreement of 12 September 1963 establishing an Association between the European Economic Community and Turkey (1) for the transitional phase if a Turkish national who, as a child, joined his parents who were employed as workers in the Federal Republic of Germany, does not lose his right of residence derived from the right under the second [indent] of the first sentence of Article 7 of Decision No 1/80 of the EEC/Turkey Association Council (Decision No 1/80) to free access to any paid employment — except in cases under Article 14 of Decision No 1/80 or where he leaves the host Member State for a significant period of time without legitimate reason — even in the case where he has attained the age of 21 and no longer lives with his parents or is maintained by them?

In the event that the answer to Question 1 is negative:

| 2. | Does a Turkish national, whose legal status under the second indent of the first sentence of Article 7 of Decision No 1/80 has been terminated on the basis of the conditions set out in Question 1, reacquire that legal status if, after reaching the age of 21, he returns to live in his parents' household for a period of more than three years, is permitted to live there free of charge and is given lodging, and the mother has minimal employment (as a cleaning lady generally for 30 to 70 hours per month and at times 20 hours per month) during that period? |
| --- | --- |

2.

Does a Turkish national, whose legal status under the second indent of the first sentence of Article 7 of Decision No 1/80 has been terminated on the basis of the conditions set out in Question 1, reacquire that legal status if, after reaching the age of 21, he returns to live in his parents' household for a period of more than three years, is permitted to live there free of charge and is given lodging, and the mother has minimal employment (as a cleaning lady generally for 30 to 70 hours per month and at times 20 hours per month) during that period?

In the event that the answer to Question 2 is affirmative:

| 3. | Does the position in law change if the family member has a number of courses of residential treatments (30.8.2001 to 20.6.2002, 2.10.2003 to 8.1.2004) during the period of residence with the worker? |
| --- | --- |

3.

Does the position in law change if the family member has a number of courses of residential treatments (30.8.2001 to 20.6.2002, 2.10.2003 to 8.1.2004) during the period of residence with the worker?

| 4. | Does the position in law change if the Turkish national has regular personal income of at least EUR 400 to EUR 1 400 per month during the period of residence with the worker? |
| --- | --- |

4.

Does the position in law change if the Turkish national has regular personal income of at least EUR 400 to EUR 1 400 per month during the period of residence with the worker?

In the event that the continuance of a legal status under the second indent of the first sentence of Article 7 of Decision No 1/80 is to be assumed (if the answer to Question 1 is affirmative or the answer to Question 2 is affirmative and the answers to Questions 3 and 4 are negative):

| 5. | May a Turkish national, whose legal status derives from the second indent of the first sentence of Article 7 of Decision No 1/80 and who has lived in the federal territory since 1972, rely on the special protection against expulsion under Article 28(3)(a) of Directive 2004/38/EC of 29 April 2004 (OJ 2004 L 158, p. 77; corrigendum at OJ 2004 L 229, p. 35)? |
| --- | --- |

5.

May a Turkish national, whose legal status derives from the second indent of the first sentence of Article 7 of Decision No 1/80 and who has lived in the federal territory since 1972, rely on the special protection against expulsion under Article 28(3)(a) of Directive 2004/38/EC of 29 April 2004 (OJ 2004 L 158, p. 77; corrigendum at OJ 2004 L 229, p. 35)?

| 6. | Does the position in law change if the Turkish national, within the ten years prior to the issue of the expulsion order, resided in Turkey from 1 February 1996 to 28 November 1997 for the purpose of performing his military service? |
| --- | --- |

6.

Does the position in law change if the Turkish national, within the ten years prior to the issue of the expulsion order, resided in Turkey from 1 February 1996 to 28 November 1997 for the purpose of performing his military service?

In the event that the answer to Question 5 is negative or the answer to Question 6 is affirmative:

| 7. | May a Turkish national, whose legal status derives from the second indent of the first sentence of Article 7 of Decision No 1/80 and who has lived in the federal territory since 1972, rely on the special protection against expulsion under Article 28(2) of Directive 2004/38? |
| --- | --- |

7.

May a Turkish national, whose legal status derives from the second indent of the first sentence of Article 7 of Decision No 1/80 and who has lived in the federal territory since 1972, rely on the special protection against expulsion under Article 28(2) of Directive 2004/38?

In the event that the answer to Question 7 is negative:

| 8. | May a Turkish national, whose legal status derives from the second indent of the first sentence of Article 7 of Decision No 1/80, rely on the special protection against expulsion under Article 28(1) of Directive 2004/38? |
| --- | --- |

8.

May a Turkish national, whose legal status derives from the second indent of the first sentence of Article 7 of Decision No 1/80, rely on the special protection against expulsion under Article 28(1) of Directive 2004/38?

In the event that the continuance of a legal status under the second indent of the first sentence of Article 7 of Decision No 1/80 is to be assumed (if the answer to Question 1 is affirmative or the answer to Question 2 is affirmative and the answers to Questions 3 and 4 are negative), a further question requires an answer:

| 9. | Can a number of minor offences (essentially offences against property), which, taken individually, are not sufficient to form the basis of an actual and sufficiently serious danger to a fundamental interest of society, justify expulsion because of their great number, if further offences are likely and no measures are taken against German nationals in the same circumstances? |
| --- | --- |

9.

Can a number of minor offences (essentially offences against property), which, taken individually, are not sufficient to form the basis of an actual and sufficiently serious danger to a fundamental interest of society, justify expulsion because of their great number, if further offences are likely and no measures are taken against German nationals in the same circumstances?

---

(1)  OJ 1977 L 361, p. 60.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/21 |
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Official Journal of the European Union

C 281/21

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Reference for a preliminary ruling from the Landesarbeitsgericht Düsseldorf (Germany) lodged on 21 August 2006 — Gerhard Schultz-Hoff v Deutsche Rentenversicherung Bund

(Case C-350/06)

(2006/C 281/33)

Language of the case: German

Referring court

Landesarbeitsgericht Düsseldorf

Parties to the main proceedings

Appellant: Gerhard Schultz-Hoff

Respondent: Deutsche Rentenversicherung Bund

Questions referred

| 1. | Is Article 7(1) of Directive 2003/88/EC (1) (= Article 7 of Directive 93/104/EC) to be understood as meaning that workers must in any event receive minimum annual paid leave of four weeks [and that] in particular leave not taken by a worker because of illness during the leave year must be authorised at a later date, or can national legal provisions and/or national practice stipulate that an entitlement to annual paid leave is extinguished if workers become incapacitated for work during the leave year before leave is authorised and do not recover their capacity for work before the end of the leave year or the carry-over period laid down by statute, collective agreement or individual agreement? |
| --- | --- |

1.

Is Article 7(1) of Directive 2003/88/EC (1) (= Article 7 of Directive 93/104/EC) to be understood as meaning that workers must in any event receive minimum annual paid leave of four weeks [and that] in particular leave not taken by a worker because of illness during the leave year must be authorised at a later date, or can national legal provisions and/or national practice stipulate that an entitlement to annual paid leave is extinguished if workers become incapacitated for work during the leave year before leave is authorised and do not recover their capacity for work before the end of the leave year or the carry-over period laid down by statute, collective agreement or individual agreement?

| 2. | Is Article 7(2) of Directive 2003/88/EC to be understood as meaning that at the end of the employment relationship workers have, in any event, a claim to financial compensation in respect of leave accrued but not taken (an allowance in lieu of leave), or can national legislation and/or national practice stipulate that workers will not receive an allowance in lieu of leave if, up to the end of the leave year or the relevant carry-over period, they are incapacitated for work and/or if after the ending of the employment relationship they draw a disability or invalidity pension? |
| --- | --- |

2.

Is Article 7(2) of Directive 2003/88/EC to be understood as meaning that at the end of the employment relationship workers have, in any event, a claim to financial compensation in respect of leave accrued but not taken (an allowance in lieu of leave), or can national legislation and/or national practice stipulate that workers will not receive an allowance in lieu of leave if, up to the end of the leave year or the relevant carry-over period, they are incapacitated for work and/or if after the ending of the employment relationship they draw a disability or invalidity pension?

| 3. | In the event that the Court of Justice answers Questions 1 and 2 in the affirmative:
  Is Article 7 of Directive 2003/88/EC to be understood as meaning that the entitlement to annual leave or an allowance in lieu requires the worker actually to have worked during the leave year, or does the entitlement arise also in the case of excusable absence (by reason of illness) or inexcusable absence in the same leave year? |
| --- | --- |

3.

In the event that the Court of Justice answers Questions 1 and 2 in the affirmative:

Is Article 7 of Directive 2003/88/EC to be understood as meaning that the entitlement to annual leave or an allowance in lieu requires the worker actually to have worked during the leave year, or does the entitlement arise also in the case of excusable absence (by reason of illness) or inexcusable absence in the same leave year?

---

(1)  OJ L 299, p. 9.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/21 |
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Official Journal of the European Union

C 281/21

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Reference for a preliminary ruling from the Finanzgericht Köln lodged on 25 August 2006 — Brigitte Bosmann v Bundesagentur für Arbeit, Familienkasse Aachen

(Case C-352/06)

(2006/C 281/34)

Language of the case: German

Referring court

Finanzgericht Köln

Parties to the main proceedings

Applicant: Brigitte Bosmann

Defendant: Bundesagentur für Arbeit, Familienkasse Aachen

Question(s) referred

| 1. | Is Article 13(2)(a) of Council Regulation (EEC) No 1408/71 (1) on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community to be interpreted restrictively, so as not to prevent entitlement to child benefit of a mother bringing up children on her own in the State or residence (Federal Republic of Germany), who does not receive child benefit in the State of employment (Kingdom of the Netherlands) because of the age of the children? |
| --- | --- |

1.

Is Article 13(2)(a) of Council Regulation (EEC) No 1408/71 (1) on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community to be interpreted restrictively, so as not to prevent entitlement to child benefit of a mother bringing up children on her own in the State or residence (Federal Republic of Germany), who does not receive child benefit in the State of employment (Kingdom of the Netherlands) because of the age of the children?

| 2. | If Question 1 is answered in the negative:
  Is Article 10 of Council Regulation (EEC) No 574/72 of 21 March 1972 for implementing Regulation (EEC) No 1408/71 (2) to be interpreted restrictively, so as not to prevent entitlement to child benefit of a mother bringing up children on her own in the State of residence (Federal Republic of Germany), who does not receive child benefit in the State of employment (Kingdom of the Netherlands) because of the age of the children? |
| --- | --- |

2.

If Question 1 is answered in the negative:

Is Article 10 of Council Regulation (EEC) No 574/72 of 21 March 1972 for implementing Regulation (EEC) No 1408/71 (2) to be interpreted restrictively, so as not to prevent entitlement to child benefit of a mother bringing up children on her own in the State of residence (Federal Republic of Germany), who does not receive child benefit in the State of employment (Kingdom of the Netherlands) because of the age of the children?

| 3. | If the answer to Question 1 and Question 2 is in the negative:
  Does a mother in employment, who brings up children on her own, have a right to the application of the more favourable rules of her State of residence in relation to the granting of child benefit arising directly from the EC Treaty and/or from general legal principles? |
| --- | --- |

3.

If the answer to Question 1 and Question 2 is in the negative:

Does a mother in employment, who brings up children on her own, have a right to the application of the more favourable rules of her State of residence in relation to the granting of child benefit arising directly from the EC Treaty and/or from general legal principles?

| 4. | Is it relevant to the answers to the above questions whether the employee returns to the family residence at the end of each working day? |
| --- | --- |

4.

Is it relevant to the answers to the above questions whether the employee returns to the family residence at the end of each working day?

---

(1)  OJ L 149, p. 2.

(2)  OJ L 74, p. 1.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/22 |
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18.11.2006

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Official Journal of the European Union

C 281/22

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Reference for a preliminary ruling from the Amtsgericht Flensburg (Germany) lodged on 28 August 2006 — in the Registry Office case Stefan Grunkin and Dorothee Regina Paul, other parties to the proceedings: Leonhard Matthias Grunkin-Paul and Standesamt Niebüll

(Case C-353/06)

(2006/C 281/35)

Language of the case: German

Referring court

Amtsgericht Flensburg

Parties to the main proceedings

Applicants: Stefan Grunkin and Dorothee Regina Paul

Other parties to the proceedings: Leonhard Matthias Grunkin-Paul and Standesamt Niebüll

Question referred

In light of the prohibition on discrimination set out in Article 12 of the EC Treaty and having regard to the right to the freedom of movement for every citizen of the Union laid down by Article 18 of the EC Treaty, is the provision on the conflict of laws contained in Article 10 of the EGBGB valid, in so far as it provides that the right to bear a name is governed by nationality alone?

---

| 18.11.2006 | EN | Official Journal of the European Union | C 281/22 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/22

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Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 30 August 2006 — Frigerio Luigi & C. S.n.c. v Comune di Triuggio

(Case C-357/06)

(2006/C 281/36)

Language of the case: Italian

Referring court

The Tribunale Amministrativo Regionale per la Lombardia

Parties to the main proceedings

Applicant: Frigerio Luigi & C. S.n.c.

Defendant: Comune di Triuggio

Questions referred

| 1. | Does Article 4(1) of Directive 2004/18/EC (1), or the analogous Article 26(2) of Directive 92/50/EEC (2) (in the event that the latter is regarded as the legislative point of reference), according to which candidates and tenderers who, on the basis of the legislation of the Member State in which they are established, are authorised to provide the service at issue may not be rejected solely because, under the provisions in force in the Member State in which the contract is to be awarded, they would be required to be natural persons or legal persons, lay down a fundamental principle of Community law such as to override the formal limitation laid down by Article 113(5) of Legislative Decree No 267/2000 and by Articles 2(6) and 15(1) of Regional Lombardy Law No 26 of 12 December 2003, and is it therefore capable of compelling compliance in such a way as to allow persons not having the status of joint stock companies to participate in tendering procedures? |
| --- | --- |

1.

Does Article 4(1) of Directive 2004/18/EC (1), or the analogous Article 26(2) of Directive 92/50/EEC (2) (in the event that the latter is regarded as the legislative point of reference), according to which candidates and tenderers who, on the basis of the legislation of the Member State in which they are established, are authorised to provide the service at issue may not be rejected solely because, under the provisions in force in the Member State in which the contract is to be awarded, they would be required to be natural persons or legal persons, lay down a fundamental principle of Community law such as to override the formal limitation laid down by Article 113(5) of Legislative Decree No 267/2000 and by Articles 2(6) and 15(1) of Regional Lombardy Law No 26 of 12 December 2003, and is it therefore capable of compelling compliance in such a way as to allow persons not having the status of joint stock companies to participate in tendering procedures?

| 2. | In the event that the Court does not consider the above rules to be the expression of a fundamental principle of Community law, does Article 4(1) of Directive 2004/18/EC or the analogous Article 26(2) of Directive 92/50 (in the event that the latter is regarded as the legislative point of reference) constitute, rather, an implicit corollary or a ‘derivative principle’ of the principle of competition, viewed in conjunction with those concerning administrative transparency and non-discrimination on grounds of nationality, and does it therefore, as such, have immediate binding effect and take precedence over any possibly conflicting domestic provisions laid down by Member States to govern public works contracts falling outside the scope of the direct applicability of Community law? |
| --- | --- |

2.

In the event that the Court does not consider the above rules to be the expression of a fundamental principle of Community law, does Article 4(1) of Directive 2004/18/EC or the analogous Article 26(2) of Directive 92/50 (in the event that the latter is regarded as the legislative point of reference) constitute, rather, an implicit corollary or a ‘derivative principle’ of the principle of competition, viewed in conjunction with those concerning administrative transparency and non-discrimination on grounds of nationality, and does it therefore, as such, have immediate binding effect and take precedence over any possibly conflicting domestic provisions laid down by Member States to govern public works contracts falling outside the scope of the direct applicability of Community law?

| 3. | Are Article 113(5) of Legislative Decree No 267/2000 and Articles 2(6) and 15(1) of the Regional Lombardy Law of 12 December 2003 compatible with the Community principles set out in Article 39 (free movement of workers within the Community), Article 43 (freedom of establishment), Articles 48 and 81 (agreements restricting competition) of the Treaty establishing the European Community, and therefore, in the event of a conflict being identified, must the abovementioned national provisions be disapplied as conflicting with Community provisions that have direct binding effect and take precedence over domestic provisions? |
| --- | --- |

3.

Are Article 113(5) of Legislative Decree No 267/2000 and Articles 2(6) and 15(1) of the Regional Lombardy Law of 12 December 2003 compatible with the Community principles set out in Article 39 (free movement of workers within the Community), Article 43 (freedom of establishment), Articles 48 and 81 (agreements restricting competition) of the Treaty establishing the European Community, and therefore, in the event of a conflict being identified, must the abovementioned national provisions be disapplied as conflicting with Community provisions that have direct binding effect and take precedence over domestic provisions?

| 4. | Are Article 113(5) of Legislative Decree No 267/2000 and Articles 2(6) and 15(1) of the Regional Lombardy Law of 12 December 2003 compatible with Article 9(1) of Directive 75/442/EEC or the analogous Article 7(2) of Directive 2006/12/EC of 5 April 2006 (in the event that the latter is regarded as the legislative point of reference), which provide, respectively, that ‘any establishment or undertaking which carries out the operations specified in Annex II A must obtain a permit from the competent authority referred to in Article 6.’ and ‘[t]he plans referred to in paragraph 1 may, for example, cover: (a) the natural or legal persons empowered to carry out waste management’? |
| --- | --- |

4.

Are Article 113(5) of Legislative Decree No 267/2000 and Articles 2(6) and 15(1) of the Regional Lombardy Law of 12 December 2003 compatible with Article 9(1) of Directive 75/442/EEC or the analogous Article 7(2) of Directive 2006/12/EC of 5 April 2006 (in the event that the latter is regarded as the legislative point of reference), which provide, respectively, that ‘any establishment or undertaking which carries out the operations specified in Annex II A must obtain a permit from the competent authority referred to in Article 6.’ and ‘[t]he plans referred to in paragraph 1 may, for example, cover: (a) the natural or legal persons empowered to carry out waste management’?

---

(1)  OJ L 134, p. 114.

(2)  OJ L 209, p. 1.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/23 |
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Action brought on 7 September 2006 — Commission of the European Communities v Italian Republic

(Case C-365/06)

(2006/C 281/37)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: E. Traversa and E. Montaguti, Agents)

Defendant: Italian Republic

Form of order sought

| — | Declare that:






  — | by restricting the activity of preparing and printing pay slips to employment consultants, or persons with equivalent status, registered with the relevant professional associations; |
| --- | --- | --- |

—

Declare that:

—

by restricting the activity of preparing and printing pay slips to employment consultants, or persons with equivalent status, registered with the relevant professional associations;

| — | by laying down specific requirements concerning the composition and establishment of data-processing centres; |
| --- | --- |

—

by laying down specific requirements concerning the composition and establishment of data-processing centres;

| — | by making registration with such professional associations subject to a requirement of residence in Italy, |
| --- | --- |

—

by making registration with such professional associations subject to a requirement of residence in Italy,

the Italian Republic has failed to fulfil its obligations under Articles 43 EC and 49 EC;

and that:

| — | by prohibiting any person from pursuing any activity as employment consultant unless that person is registered with a professional association in Italy, |
| --- | --- |

—

by prohibiting any person from pursuing any activity as employment consultant unless that person is registered with a professional association in Italy,

the Italian Republic has failed to fulfil its obligations under Article 49 EC;

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

—

Order the Italian Republic to pay the costs.

Pleas in law and main arguments

| — | Restricting the activity of preparing and printing pay slips to employment consultants and other professional groups set out exhaustively in the legislation constitutes a restriction on freedom of establishment and freedom to provide services guaranteed by Articles 43 EC and 49 EC. The activities provided by data-processing centres essentially consist of simply carrying out instructions received from clients. That entails entering data provided by the client onto particular computer software which has been programmed with information provided by that client in accordance with the legislation in force. The work of data processing centres preparing pay slips does not therefore entail any responsibility for calculating an individual employee's net salary on the basis of the relevant legislation, which requires analysis and in-depth knowledge of that legislation. Restricting the activity of preparing and printing pay slips to employment consultants cannot therefore be justified in the light of the need to protect workers' rights since such tasks are essentially executory and do not require specific professional qualifications. |
| --- | --- |

—

Restricting the activity of preparing and printing pay slips to employment consultants and other professional groups set out exhaustively in the legislation constitutes a restriction on freedom of establishment and freedom to provide services guaranteed by Articles 43 EC and 49 EC. The activities provided by data-processing centres essentially consist of simply carrying out instructions received from clients. That entails entering data provided by the client onto particular computer software which has been programmed with information provided by that client in accordance with the legislation in force. The work of data processing centres preparing pay slips does not therefore entail any responsibility for calculating an individual employee's net salary on the basis of the relevant legislation, which requires analysis and in-depth knowledge of that legislation. Restricting the activity of preparing and printing pay slips to employment consultants cannot therefore be justified in the light of the need to protect workers' rights since such tasks are essentially executory and do not require specific professional qualifications.

| — | In order to be able to provide the services of preparing and printing pay slips to small undertakings, data-processing centres must be ‘formed and composed exclusively of persons registered with the relevant professional associations’. ‘That requirement ... precludes the board members of foreign parent companies from being founder members or from sitting on the board of management of an Italian subsidiary unless they arrange to be registered with the relevant professional associations. ... [This] is a covert form of discrimination which, through the application of a criterion other than nationality, achieves the same result as discrimination which is overtly based on nationality.’ (Opinion of Advocate General Mischo in Case C-79/01 Payroll Data Services [2002] ECR I-8923). |
| --- | --- |

—

In order to be able to provide the services of preparing and printing pay slips to small undertakings, data-processing centres must be ‘formed and composed exclusively of persons registered with the relevant professional associations’. ‘That requirement ... precludes the board members of foreign parent companies from being founder members or from sitting on the board of management of an Italian subsidiary unless they arrange to be registered with the relevant professional associations. ... [This] is a covert form of discrimination which, through the application of a criterion other than nationality, achieves the same result as discrimination which is overtly based on nationality.’ (Opinion of Advocate General Mischo in Case C-79/01 Payroll Data Services [2002] ECR I-8923).

| — | Italian legislation provides that any person applying for registration with such an association must submit a certificate of residence with the application. If the purpose of the residence requirement is to enable checks to be carried out and, where necessary, action to be taken against providers of services acting in breach of the rules, such a requirement appears wholly disproportionate. Indeed, regardless of the place of residence, it is perfectly possible to carry out checks and, if necessary, impose penalties on any data-processing centre established in any Member State. The residence requirement is not therefore justified by the need to protect workers relied on by the Italian authorities. |
| --- | --- |

—

Italian legislation provides that any person applying for registration with such an association must submit a certificate of residence with the application. If the purpose of the residence requirement is to enable checks to be carried out and, where necessary, action to be taken against providers of services acting in breach of the rules, such a requirement appears wholly disproportionate. Indeed, regardless of the place of residence, it is perfectly possible to carry out checks and, if necessary, impose penalties on any data-processing centre established in any Member State. The residence requirement is not therefore justified by the need to protect workers relied on by the Italian authorities.

| — | The Italian legislation that is the subject of this action provides, finally, that even data processing centres established in other Member States must, in order to be able to offer their services, have within their internal structure employment consultants who are registered with an Italian professional association. The requirement for employment consultants to be registered with a professional association appears to go beyond what is necessary for the protection of workers and makes the provision of services subject to an actual authorisation procedure on the part of the competent authorities without any distinction being made between permanent and temporary provision of services. To ignore such a distinction would amount to depriving ‘of all practical effectiveness the provisions of the Treaty whose object is, precisely, to guarantee the freedom to provide services’, (Case C-58/98 Corsten [2000] ECR I-7919). |
| --- | --- |

—

The Italian legislation that is the subject of this action provides, finally, that even data processing centres established in other Member States must, in order to be able to offer their services, have within their internal structure employment consultants who are registered with an Italian professional association. The requirement for employment consultants to be registered with a professional association appears to go beyond what is necessary for the protection of workers and makes the provision of services subject to an actual authorisation procedure on the part of the competent authorities without any distinction being made between permanent and temporary provision of services. To ignore such a distinction would amount to depriving ‘of all practical effectiveness the provisions of the Treaty whose object is, precisely, to guarantee the freedom to provide services’, (Case C-58/98 Corsten [2000] ECR I-7919).

---

| 18.11.2006 | EN | Official Journal of the European Union | C 281/24 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/24

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Reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 8 September 2006 — DNA Verkot Oy

(Case C-366/06)

(2006/C 281/38)

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Applicant: DNA Verkot Oy

Other parties: Sonera Mobile Networks Oy, Viestintävirasto

Questions referred

| 1. | Must Article 4(1) on the right of appeal of Directive 2002/21/EC (1) of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) be interpreted in such a way that a telecommunications undertaking must be considered to have a right of appeal against a decision in which the view is taken that a competitor of the telecommunications undertaking concerned does not have significant market power status? |
| --- | --- |

1.

Must Article 4(1) on the right of appeal of Directive 2002/21/EC (1) of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) be interpreted in such a way that a telecommunications undertaking must be considered to have a right of appeal against a decision in which the view is taken that a competitor of the telecommunications undertaking concerned does not have significant market power status?

| 2. | If the answer to Question 1 is affirmative, an answer to the following question is requested:
  Does the requirement in Article 4(1) of Framework Directive 2002/21/EC with regard to taking into account the facts of the case and an effective appeal mechanism mean that a national court may examine the facts of the case, make a legal evaluation, and give judgment in the case, without the Commission's decision under Article 7(4) of the Framework Directive and its reasoning in respect of a market analysis restricting the jurisdiction of the national court? |
| --- | --- |

2.

If the answer to Question 1 is affirmative, an answer to the following question is requested:

Does the requirement in Article 4(1) of Framework Directive 2002/21/EC with regard to taking into account the facts of the case and an effective appeal mechanism mean that a national court may examine the facts of the case, make a legal evaluation, and give judgment in the case, without the Commission's decision under Article 7(4) of the Framework Directive and its reasoning in respect of a market analysis restricting the jurisdiction of the national court?

---

(1)  OJ L 108, p. 33.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/25 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/25

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Reference for a preliminary ruling from the Administrative Court, Lyon lodged on 8 September 2006 — CEDILAC v Minister for the Economy, Finance and Industry

(Case C-368/06)

(2006/C 281/39)

Language of the case: French

Referring court

Administrative Court, Lyon

Parties to the main proceedings

Applicant: CEDILAC

Defendant: Minister for the Economy, Finance and Industry

Question referred

Are the enacting provisions adopted by France to accompany the repeal of the one-month delay rule compatible with Articles 17 and 18(4) of Directive 1997/388/EEC of the Council of the European Communities of 17 May 1977? (1)

---

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

---

| 18.11.2006 | EN | Official Journal of the European Union | C 281/25 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/25

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Appeal brought on 13 September 2006 by Thomas Faherty against the judgment of the Court of First Instance (First Chamber) delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03: Cathal Boyle and others v Commission of the European Communities

(Case C-373/06 P)

(2006/C 281/40)

Language of the case: English

Parties

Appellant: Thomas Faherty (represented by: P. Gallagher SC, A. Collins SC, D. Barry, Solicitor)

Other parties to the proceedings: Ireland, Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | Set aside the judgment of the Court if First Instance of June 13, 2006 in so far as it dismissed the application in case T-224/03, Thomas Faherty v. Commission for the annulment of Commission Decision 2003/245/EC (1) of 4 April 2003 on the requests received by the Commission to increase MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 m in length overall as it applied to the safety capacity application for a proposed new RSW vessel to replace the MFV Westward Isle and ordered him to bear his own costs. |
| --- | --- |

—

Set aside the judgment of the Court if First Instance of June 13, 2006 in so far as it dismissed the application in case T-224/03, Thomas Faherty v. Commission for the annulment of Commission Decision 2003/245/EC (1) of 4 April 2003 on the requests received by the Commission to increase MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 m in length overall as it applied to the safety capacity application for a proposed new RSW vessel to replace the MFV Westward Isle and ordered him to bear his own costs.

| — | Annul Commission Decision 2003/245/EC of 4 April 2003 on the requests received by the Commission to increase MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 m in length overall as it applied to the safety capacity application for a proposed new RSW vessel to replace the MFV Westward Isle. |
| --- | --- |

—

Annul Commission Decision 2003/245/EC of 4 April 2003 on the requests received by the Commission to increase MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 m in length overall as it applied to the safety capacity application for a proposed new RSW vessel to replace the MFV Westward Isle.

| — | Order the Commission to pay the costs of the entirety of these proceedings. |
| --- | --- |

—

Order the Commission to pay the costs of the entirety of these proceedings.

Pleas in law and main arguments

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

By determining the appellant's interest in bringing the proceedings by reference to the date of the adoption of decision 2003/245 and not the date on which the application was lodged the Court of First Instance applied an incorrect legal test;

The Court made a substantive error apparent from the documents submitted to it, namely as to the appellant's ownership of the MFV ‘Westward Isle’ at all times material to the application;

The finding that the appellant was not individually concerned by decision 2003/245 ‘since the vessels in question are fictitious’ has no basis in law and is, moreover, contradicted by the reasoning of the Court of First Instance in its judgment;

The appellant is, and at all material times has been, the owner of the MFV ‘Westward Isle’. It therefore cannot be said to have lost the interest it unquestionably had at the commencement of its action for the annulment of decision 2003/245 in so far as it impacted upon its application for safety tonnage in respect of the proposed MFV ‘Westward Isle’;

The Court of First Instance erred in finding that the appellant was deprived of standing to seek the annulment of decision 2003/245 by reason of the steps it took to mitigate the loss and damage sustained as a result of that measure.

---

(1)  OJ L 90, P. 48

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/26 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/26

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Appeal brought on 14 September 2006 by Larry Murphy against the judgment of the Court of First Instance (First Chamber) delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03: Cathal Boyle and others v Commission of the European Communities

(Case C-379/06 P)

(2006/C 281/41)

Language of the case: English

Parties

Appellant: Larry Murphy (represented by: P. Gallagher SC, A. Collins SC, D. Barry, Solicitor)

Other parties to the proceedings: Ireland, Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

| — | Set aside the Judgment of the Court of First Instance of June 13, 2006 in so far as it dismissed the application in Case T-236/03, Larry Murphy v. Commission for the annulment of Commission Decision 2003/245/EC (1) of 4 April 2003 on the requests received by the Commission to increase MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 m in length overall as it applied to the safety capacity application for proposed new RSW vessel to replace the MFV Menhaden. |
| --- | --- |

—

Set aside the Judgment of the Court of First Instance of June 13, 2006 in so far as it dismissed the application in Case T-236/03, Larry Murphy v. Commission for the annulment of Commission Decision 2003/245/EC (1) of 4 April 2003 on the requests received by the Commission to increase MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 m in length overall as it applied to the safety capacity application for proposed new RSW vessel to replace the MFV Menhaden.

| — | Annul Commission Decision 2003/245/EC of 4 April 2003 on the requests received by the Commission to increase MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 m in length overall as it applied to the safety capacity application for a proposed new RSW vessel to replace the MFV Menhaden. |
| --- | --- |

—

Annul Commission Decision 2003/245/EC of 4 April 2003 on the requests received by the Commission to increase MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 m in length overall as it applied to the safety capacity application for a proposed new RSW vessel to replace the MFV Menhaden.

Pleas in law and main arguments

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

By determining the appellant's interest in bringing the proceedings by reference to the date of the adoption of decision 2003/245 and not the date on which the application was lodged the Court of First Instance applied an incorrect legal test;

The Court made a substantive error apparent from the documents submitted to it, namely as to the appellant's ownership of the MFV ‘Menhaden’ at all times material to the application;

The finding that the appellant was not individually concerned by decision 2003/245 ‘since the vessels in question are fictitious’ has no basis in law and is, moreover, contradicted by the reasoning of the Court of First Instance in its judgment;

The appellant is, and at all material times has been, the owner of the MFV ‘Menhaden’. It therefore cannot be said to have lost the interest it unquestionably had at the commencement of its action for the annulment of decision 2003/245 in so far as it impacted upon its application for safety tonnage in respect of the proposed MFV ‘Menhaden’;

The Court of First Instance erred in finding that the appellant was deprived of standing to seek the annulment of decision 2003/245 by reason of the steps it took to mitigate the loss and damage sustained as a result of that measure.

---

(1)  OJ L90, P.48

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/26 |
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18.11.2006

EN

Official Journal of the European Union

C 281/26

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Action brought on 22 September 2006 — Commission of the European Communities v Republic of Estonia

(Case C-397/06)

(2006/C 281/42)

Language of the case: Estonian

Parties

Applicant: Commission of the European Communities (represented by: J. Enegren and H. Kundla, acting as Agents)

Defendant: Republic of Estonia

Form of order sought

| — | declare that, by failing to fulfil the obligation under Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community (1) to notify all the laws, regulations and administrative provisions necessary for transposition of the directive, the Republic of Estonia has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by failing to fulfil the obligation under Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community (1) to notify all the laws, regulations and administrative provisions necessary for transposition of the directive, the Republic of Estonia has failed to fulfil its obligations under that directive;

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

—

order the Republic of Estonia to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the directive expired on 23 March 2005.

---

(1)  OJ 2002 L 80, p. 29.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/27 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/27

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Action brought on 3 October 2006 — Commission of the European Communities v Kingdom of Belgium

(Case C-407/06)

(2006/C 281/43)

Language of the case: French

Parties

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

Defendant: Kingdom of Belgium

Form of order sought

| — | declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2003/105/EC of the European Parliament and of the Council of 16 December 2003 amending Council Directive 96/82/EC on the control of major-accident hazards involving dangerous substances (1), or in any event by having failed to communicate those provisions to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive; |
| --- | --- |

—

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2003/105/EC of the European Parliament and of the Council of 16 December 2003 amending Council Directive 96/82/EC on the control of major-accident hazards involving dangerous substances (1), or in any event by having failed to communicate those provisions to the Commission, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

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

—

order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

The period for the transposition of Directive 2003/105/EC expired on 30 June 2005.

---

(1)  OJ L 345, 31.12.2003, p. 97.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/27 |
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18.11.2006

EN

Official Journal of the European Union

C 281/27

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Order of the President of the Court of 14 July 2006 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-416/05) (1)

(2006/C 281/44)

Language of the case: French

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

---

(1)  OJ C 10, 14.1.2006.

---

COURT OF FIRST INSTANCE

| 18.11.2006 | EN | Official Journal of the European Union | C 281/28 |
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18.11.2006

EN

Official Journal of the European Union

C 281/28

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Judgment of the Court of First Instance of 13 September 2006 — Sinaga v Commission

(Joined Cases T-217/99, T-321/00 and T-222/01) (1)

(Sugar - Poseima Programme - Regulation (EEC) No 1600/92 - Sugar forecast supply balance for the Azores - Action for annulment - Admissibility - Definition of traditional shipment to the rest of the Community - Statement of reasons - Compliance with essential procedural requirements)

(2006/C 281/45)

Language of the case: Portuguese

Parties

Applicant: Sociedade de Indústrias Agrícolas Açoreanas (Sinaga) SA (Ponta Delgada, Portugal) (represented by: M. Marques Mendes, lawyer)

Defendant: Commission of the European Communities (represented by: in Case T-217/99, initially A. Alves Vieira and P. Oliver, then G. Berscheid, Agents, assisted by F. Costa Leite, lawyer, and in Cases T-221/01 and T-321/00, initially A. Alves Vieira and G. Berscheid, and then by G. Berscheid, assisted initially by N. Castro Marques, lawyer, and then F. Costa Leite, lawyer)

Re:

Annulment, firstly, of the annex to Commission Regulation (EC) No 1434/1999 of 30 June 1999 establishing the sugar forecast supply balance for the 1999/2000 marketing year for the Azores, Madeira and the Canary Islands provided for in Council Regulations (EEC) No 1600/92 and (EEC) No 1601/92 (OJ 1999 L 166, p. 58); secondly, of Commission Regulation (EC) No 1481/2000 of 6 July 2000 establishing the sugar forecast supply balance for 2000/01 for the Azores, Madeira and the Canary Islands provided for in Council Regulations No 1600/92 and No 1601/92 (OJ 2000 L 167, p. 6) and also of the annex thereto and, thirdly, of the annex to Commission Regulation (EC) No 1281/2001 of 28 June 2001 establishing the forecast supply balance for sugar for the Azores, Madeira and the Canary Islands provided for in Council Regulations No 1600/92 and No 1601/92 for the period 1 July 2001 to 31 December 2001 (OJ 2001 L 176, p. 12) inasmuch as they set the quantities of sugar considered necessary for supplying the Azores

Operative part of the judgment

The Court:

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

1.

Dismisses the application;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 333, 20.11.1999.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/28 |
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18.11.2006

EN

Official Journal of the European Union

C 281/28

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Judgment of the Court of First Instance of 19 September 2006 — Lucchini SpA v Commission of the European Communities

(Case T-166/01) (1)

(ECSC - State aid - Environmental aid - Aid by Italy in favour of the Lucchini steel company - Refusal to authorise the proposed aid - Applicable legal framework - Eligibility of the notified investments as aid for environmental protection - Conditions governing the compatibility of aid with the common market - Statement of reasons)

(2006/C 281/46)

Language of the case: Italian

Parties

Applicant: Lucchini SpA Brescia (Italy), represented by G. Vezzoli and G. Belotti, lawyers)

Defendant: Commission of the European Communities (represented by V. Kreuschitz and V. Di Bucci, acting as Agents)

Re:

Annulment of Article 1 of Commission Decision 2001/466/ECSC of 21 December 2000, in so far as it declares the State aid which Italy was planning to implement for the steel company Lucchini SpA amounting to ITL 13,5 thousand million (EUR 6,98 million) to be incompatible with the common market (OJ 2001 L 163, p. 24)

Operative part of the judgment

The Court:

| 1. | Annuls Article 1 of Commission Decision 2001/466/ECSC of 21 December 2000 on the State aid which Italy is planning to implement in favour of the steel companies Lucchini SpA and Siderpotenza SpA in so far as it includes, in the amount of the State aid granted to Lucchini SpA and declared incompatible with the common market, the sums of ITL 2,7 thousand million (EUR 1,396 million) and ITL 1,38 thousand million (EUR 713 550) which correspond to the environmental investments notified by the Italian authorities for the coking plant and the water and sewerage networks respectively; |
| --- | --- |

1.

Annuls Article 1 of Commission Decision 2001/466/ECSC of 21 December 2000 on the State aid which Italy is planning to implement in favour of the steel companies Lucchini SpA and Siderpotenza SpA in so far as it includes, in the amount of the State aid granted to Lucchini SpA and declared incompatible with the common market, the sums of ITL 2,7 thousand million (EUR 1,396 million) and ITL 1,38 thousand million (EUR 713 550) which correspond to the environmental investments notified by the Italian authorities for the coking plant and the water and sewerage networks respectively;

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

2.

Dismisses the remainder of the action;

| 3. | Orders each party to bear half the costs. |
| --- | --- |

3.

Orders each party to bear half the costs.

---

(1)  OJ C 289, 13.10.2001.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/29 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/29

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Judgment of the Court of First Instance of 13 September 2006 — CAS Succhi di Frutta SpA v Commission

(Case T-226/01) (1)

(Non-contractual liability - Tendering procedure - Payment in kind - Damage suffered on the market in question due to the payment in kind - Causal link)

(2006/C 281/47)

Language of the case: Italian

Parties

Applicant: CAS Succhi di Frutta SpA (Castagnaro, Italy) (represented by: G. Roberti, F. Sciaudone and A. Franchi, lawyers)

Defendant: Commission of the European Communities (represented by: C. Cattabriga and L. Visaggio, Agents, and A. Dal Ferro, lawyer)

Re:

Application for compensation for the damage allegedly caused by Commission Decisions C (96) 1916 of 22 July 1996 and C (96) 2208 of 6 September 1996, adopted in the context of Commission Regulation (EC) No 228/96 of 7 February 1996 on the supply of fruit juice and fruit jams intended for the people of Armenia and Azerbaijan (OJ 1996 L 30, p. 18).

Operative part of the judgment

The Court:

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

1.

Dismisses the application;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 331, 24.11.2001.

---

| 18.11.2006 | EN | Official Journal of the European Union | C 281/29 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/29

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Judgment of the Court of First Instance of 13 September 2006 — British Aggregates v Commission

(Case T-210/02) (1)

(State aid - Environmental tax on aggregates in the United Kingdom - Commission Decision not to raise objections - Action for annulment - Admissibility - Person individually concerned - Selective character - Obligation to state adequate reasons - Diligent and impartial examination)

(2006/C 281/48)

Language of the case: English

Parties

Applicant: British Aggregates Association (Lanark, United Kingdom) (represented by C. Pouncey, Solicitor, and L. Van Den Hende, lawyer)

Defendant(s): Commission of the European Communities (represented by J. Flett and S. Meany, agents)

Interveners in support of the defendant: United Kingdom of Great Britain and Northern Ireland (represented initially by P. Ormond, and subsequently by T. Harris and R. Caudwell, acting as Agents, assisted initially by J. Stratford and M. Hall, Barristers, and subsequently by M. Hall)

Re:

Partial annulment of Commission Decision C (2002) 1478 final of 24 April 2002 on State aid file N 863/01 — United Kingdom/Aggregates Levy

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

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

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

3.

Orders the intervener to bear its own costs

---

(1)  OJ C 219, 14.9.2002

---

| 18.11.2006 | EN | Official Journal of the European Union | C 281/30 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/30

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Judgment of the Court of First Instance of 4 October 2006 — Moser Baer India v Council

(Case T-300/03) (1)

(Anti-subsidy investigations - Recordable compact discs originating in India - Calculation of the amount of the subsidy - Determination of injury - Causal link - Rights of the defence)

(2006/C 281/49)

Language of the case: English

Parties

Applicant: Moser Baer India Ltd (New Delhi, India) (represented by: A.P. Bentley QC, K. Adamantopoulos, lawyer, R. MacLean and J. Branton, Solicitors)

Defendant: Council of the European Union (represented by: S. Marquardt, Agent, assisted by G.M. Berrisch, lawyer)

Interveners in support of the defendant: Commission of the European Communities (represented by: T. Scharf and K. Talabér-Ricz, Agents) and Committee of European CD-R and DVD+/-R Manufacturers (CECMA), formerly Committee of European CD-R Manufacturers (CECMA) (Cologne, Germany) (represented by: D. Ehle and V. Schiller, lawyers)

Re:

Action for annulment of Council Regulation (EC) No 960/2003 of 2 June 2003 imposing a definitive countervailing duty on imports of recordable compact discs originating in India (OJ 2003 L 138, p. 1).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Orders the applicant to bear its own costs and to pay those incurred by the defendant; |
| --- | --- |

2.

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

| 3. | Orders the interveners to bear their own costs. |
| --- | --- |

3.

Orders the interveners to bear their own costs.

---

(1)  OJ C 264, 1.11.2003

---

| 18.11.2006 | EN | Official Journal of the European Union | C 281/30 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/30

---

Judgment of the Court of First Instance of 14 September 2006 — Laroche v Commission

(Case T-115/04) (1)

(Community officials - Career Development Review - Appraisal period 2001/2002 - Decision to close - Time-limit for challenge - Calculation)

(2006/C 281/50)

Language of the case: French

Parties

Applicant: Yvonne Laroche (Brussels, Belgium) (represented by: G. Bounéou and F. Frabetti, lawyers)

Defendant: Commission of the European Communities (represented by: C. Berardis-Kayser and L. Lozano Palacios, Agents)

Re:

Application for annulment of the Commission decision of 11 June 2003 to close the applicant's career development report for the appraisal period 2001/2002.

Operative part of the judgment

The Court:

| 1. | Annuls the Commission decision of 11 June 2003 to close the applicant's career development report for the appraisal period 2001/2002; |
| --- | --- |

1.

Annuls the Commission decision of 11 June 2003 to close the applicant's career development report for the appraisal period 2001/2002;

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

2.

Orders the Commission to pay the costs.

---

(1)  OJ C 106, 30.4.2004.

---

| 18.11.2006 | EN | Official Journal of the European Union | C 281/30 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/30

---

Judgment of the Court of First Instance of 14 September 2006 — Rossi Ferreras v Commission

(Case T-119/04) (1)

(Officials - Career development report - Application for annulment - Assessment period 2001-2002 - Opinion of previous immediate superior - Failure of assessor to take into account - Claim for compensation - Inadmissibility)

(2006/C 281/51)

Language of the case: French

Parties

Applicant: Francisco Rossi Ferreras (Luxembourg, Luxembourg) (represented by: G. Bounéou and F. Frabetti, lawyers)

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

Re:

Application for partial annulment of the applicant's career development report for the assessment period 2001-2002 and an application for the payment of EUR 30 000 in damages for the non-material damage alleged.

Operative part of the judgment

The Court:

| 1. | Annuls the decision adopting the applicant's career development report for the period from 1 July 2001 to 31 December 2002. |
| --- | --- |

1.

Annuls the decision adopting the applicant's career development report for the period from 1 July 2001 to 31 December 2002.

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

2.

Dismisses the remainder of the application.

| 3. | Orders the Commission to pay the costs. |
| --- | --- |

3.

Orders the Commission to pay the costs.

---

(1)  OJ C 156, 12.06.2004.

---

| 18.11.2006 | EN | Official Journal of the European Union | C 281/31 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/31

---

Judgment of the Court of First Instance of 7 September 2006 — L & D v OHIM — Sämann (Aire Limpio)

(Case T-168/04) (1)

(Community trade mark - Opposition proceedings - Earlier figurative marks representing a fir tree including, in certain cases, verbal elements - Application for figurative mark containing the verbal element ‘Aire Limpio’ - Likelihood of confusion - Article 8(1)(b) and Article 73 of Regulation (EC) No 40/94)

(2006/C 281/52)

Language of the case: Spanish

Parties

Applicant: L & D, SA (Huercal de Almeria, Spain) (represented by: initially, M. Knospe, and, subsequently, S. Miralles Miravet and A. Castedo Garcia, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. García Murillo, Agent)

Other party to the proceedings before the Board of Appeal of OHIM, intervening before the Court of First Instance: Julius Sämann Ltd (Zug, Switzerland) (represented by: A. Castán Pérez Gómez and E. Armijo Chávarri, lawyers)

Re:

Application for partial annulment of the decision of the Second Board of Appeal of OHIM of 15 March 2004 (Case R 326/2003-2) relating to opposition proceedings between Julius Sämann Ltd and L & D, SA.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 273, 6.11.2004.

---

| 18.11.2006 | EN | Official Journal of the European Union | C 281/31 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/31

---

Judgment of the Court of First Instance of 4 October 2006 — Freixenet v OHIM (Shape of a frosted matt black bottle)

(Case T-188/04) (1)

(Community trade mark - Shape of a frosted matt black bottle - Absolute ground of refusal - Article 7(1)(b) of Regulation (EC) No 40/94 - Lack of distinctive character - Infringement of the rights of the defence - Article 73 of Regulation No 40/94)

(2006/C 281/53)

Language of the case: French

Parties

Applicant: Freixenet, SA (Sant Sadurní d'Anoia, Spain) (represented by: F. de Visscher, E. Cornu, É. De Gryse and D. Moreau, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: I. de Medrano Caballero, Agent)

Re:

Action for annulment of the decision of the Fourth Board of Appeal of OHIM of 11 February 2004 (Case R 97/2001-4) concerning registration of a mark in the form of a frosted matt black bottle as a Community trade mark

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 February 2004 (Case R 104/2001-4); |
| --- | --- |

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 February 2004 (Case R 104/2001-4);

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

2.

Dismisses the remainder of the action;

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

3.

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

---

(1)  OJ C 201, 7.8.2004.

---

| 18.11.2006 | EN | Official Journal of the European Union | C 281/32 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/32

---

Judgment of the Court of First Instance of 4 October 2006 — Freixenet v OHIM (Shape of a frosted white bottle)

(Case T-190/04) (1)

(Community trade mark - Shape of a frosted white bottle - Absolute ground of refusal - Article 7(1)(b) of Regulation (EC) No 40/94 - Lack of distinctive character - Infringement of the rights of the defence - Article 73 of Regulation No 40/94)

(2006/C 281/54)

Language of the case: French

Parties

Applicant: Freixenet, SA (Sant Sadurní d'Anoia, Spain) (represented by: F. de Visscher, E. Cornu, É. De Gryse and D. Moreau, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: I. de Medrano Caballero, Agent)

Re:

Action for annulment of the decision of the Fourth Board of Appeal of OHIM of 11 February 2004 (Case R 97/2001-4) concerning registration of a mark in the form of a frosted white bottle as a Community trade mark

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 February 2004 (Case R 97/2001-4); |
| --- | --- |

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 February 2004 (Case R 97/2001-4);

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

2.

Dismisses the remainder of the action;

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

3.

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

---

(1)  OJ C 201, 7.8.2004.

---

| 18.11.2006 | EN | Official Journal of the European Union | C 281/32 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/32

---

Judgment of the Court of First Instance of 13 September 2006 — MIP METRO v OHIM Tesco Stores (METRO)

(Case T-191/04) (1)

(Community trade mark - Opposition proceedings - Application for a figurative mark consisting of the word mark METRO - Earlier national word mark METRO - Expiry of protection of earlier national trade mark)

(2006/C 281/55)

Language of the case: English

Parties

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

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, Agent)

Other party to the proceedings before the Board of Appeal of OHIM, intervening before the Court of First Instance: Tesco Stores Ltd (Cheshunt, United Kingdom) (represented by: S. Malynicz, Barrister)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 23 March 2004 (Case R 486/2003-1), relating to opposition proceedings between MIP Metro Group Intellectual Property GmbH & Co. KG and Tesco Stores Ltd.

Operative part of the judgment

The Court:

| 1. | Declares that the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 March 2004 (Case R 486/2003-1) is annulled; |
| --- | --- |

1.

Declares that the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 March 2004 (Case R 486/2003-1) is annulled;

| 2. | Orders OHIM to bear its own costs and to pay those incurred by the applicant; |
| --- | --- |

2.

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

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

3.

Orders the intervener to bear its own costs.

---

(1)  OJ C 201, 7.8.2004.

---

| 18.11.2006 | EN | Official Journal of the European Union | C 281/33 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/33

---

Judgment of the Court of First Instance of 4 October 2006 — Tillack v Commission

(Case T-193/04) (1)

(Investigation by the European Anti-Fraud Office (OLAF) into the publication of confidential information - Suspicions of bribery and breach of professional secrecy - Communication to national judicial authorities of information relating to situations liable to lead to criminal proceedings - Search of the home and office of a journalist - Action for annulment - Admissibility - Action for damages - Causal link - Sufficiently serious breach)

(2006/C 281/56)

Language of the case: English

Parties

Applicant: Hans-Martin Tillack (Brussels, Belgium) (represented by: I. Forrester QC, T. Bosly, C. Arhold, N. Flandin, J. Herrlinger and J. Siaens, lawyers)

Defendant: Commission of the European Communities (represented by: C. Docksey and C. Ladenburger, Agents)

Intervener in support of the applicant: International Federation of Journalists (IFJ) (Brussels, Belgium) (represented by: A. Bartosch and T. Grupp, lawyers)

Re:

APPLICATION, first, for the annulment of the act by which, on 11 February 2004, the European Anti-Fraud Office (OLAF) forwarded to the German and Belgian judicial authorities information concerning suspicions of breach of professional secrecy and bribery and, second, for damages in compensation for non-material injury suffered by the applicant as a result of the forwarding of that information and of the publication of press releases by OLAF.

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

| 2. | Declares it unnecessary to give judgment on the request for the production of documents; |
| --- | --- |

2.

Declares it unnecessary to give judgment on the request for the production of documents;

| 3. | Orders the applicant to pay his own costs and the costs incurred by the Commission, including those relating to the interlocutory proceedings; |
| --- | --- |

3.

Orders the applicant to pay his own costs and the costs incurred by the Commission, including those relating to the interlocutory proceedings;

| 4. | Orders the International Federation of Journalists to bear its own costs. |
| --- | --- |

4.

Orders the International Federation of Journalists to bear its own costs.

---

(1)  OJ C 251, 9.10.2004.

---

| 18.11.2006 | EN | Official Journal of the European Union | C 281/33 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/33

---

Judgment of the Court of First Instance of 6 September 2006 — Italy and Wam v Commission

(Joined Cases T-304/04 and T-316/04) (1)

(State aid - Loans at reduced rates intended to make it possible to become established in certain non-member countries - Effect on trade between Member States and distortion of competition - Statement of reasons)

(2006/C 281/57)

Language of the case: Italian

Parties

Applicants: Italian Republic (represented initially by A. Cingolo, and subsequently by P. Gentili, lawyers) and Wam SpA (Cavezzo di Modena, Italy) (represented by E. Giliani, lawyer)

Defendant: Commission of the European Communities (represented by: V. Di Bucci and E. Righini, Agents)

Re:

Application for annulment of Commission Decision 2006/177/EC of 19 May 2004 on State aid No C 4/2003 (ex NN 102/2002) implemented by Italy for WAM SpA (OJ 2006 L 63, p. 11).

Operative part of the judgment

The Court:

| 1. | Annuls Commission Decision 2006/177/EC of 19 May 2004 on State aid No C 4/2003 (ex NN 102/2002) implemented by Italy for WAM SpA (OJ 2006 L 63, p. 11); |
| --- | --- |

1.

Annuls Commission Decision 2006/177/EC of 19 May 2004 on State aid No C 4/2003 (ex NN 102/2002) implemented by Italy for WAM SpA (OJ 2006 L 63, p. 11);

| 2. | Dismisses the actions as to the remainder; |
| --- | --- |

2.

Dismisses the actions as to the remainder;

| 3. | Orders the Commission to bear its own costs and to pay those incurred, in Case T-304/04, by the Italian Republic and, in Case T-316/04, by Wam, including those relating to the interim proceedings. |
| --- | --- |

3.

Orders the Commission to bear its own costs and to pay those incurred, in Case T-304/04, by the Italian Republic and, in Case T-316/04, by Wam, including those relating to the interim proceedings.

---

(1)  OJ C 251 of 9.10.2004.

---

| 18.11.2006 | EN | Official Journal of the European Union | C 281/34 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/34

---

Judgment of the Court of First Instance of 6 September 2006 — DEF-TEC Defense Technology v OHIM — Defense Technology (FIRST DEFENSE AEROSOL PEPPER PROJECTOR)

(Case T-6/05) (1)

(Community trade mark - Opposition proceedings - Application for figurative mark FIRST DEFENSE AEROSOL PEPPER PROJECTOR - Relative ground for refusal - Article 8(3) of Regulation (EC) No 40/94 - Existence of trade mark proprietor's consent)

(2006/C 281/58)

Language of the case: English

Parties

Applicant: DEF-TEC Defense Technology GmbH (Frankfurt am Main, Germany) (represented by: H. Daniel, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: D. Botis, Agent)

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Defense Technology Corporation of America (Jacksonville, Florida) (represented by: G. Würtenberger and R. Kunze, lawyers)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 8 November 2004 (Case R 493/2002-2), relating to opposition proceedings between DEF-TEC Defense Technology GmbH and Defense Technology Corporation of America

Operative part of the judgment

The Court:

| 1. | Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 8 November 2004 (Case R 493/2002 2); |
| --- | --- |

1.

Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 8 November 2004 (Case R 493/2002 2);

| 2. | Orders OHIM to bear its own costs and the costs of the applicant, except those relating to the intervention; |
| --- | --- |

2.

Orders OHIM to bear its own costs and the costs of the applicant, except those relating to the intervention;

| 3. | Orders the applicant to bear the costs relating to the intervention; |
| --- | --- |

3.

Orders the applicant to bear the costs relating to the intervention;

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

4.

Orders the intervener to bear its own costs.

---

(1)  OJ C 82, 2.4.2005.

---

| 18.11.2006 | EN | Official Journal of the European Union | C 281/34 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/34

---

Judgment of the Court of First Instance of 4 October 2006 — Monte di Massima v OHIM — Höfferle Internationale (Valle della Luna)

(Case T-96/05) (1)

(Community trade mark - Opposition procedure - Application for figurative Community trade mark Valle della Luna - Earlier national figurative mark VALLE DE LA LUNA - Proof of use of the earlier mark - Article 15(2)(a), and Article 43(2) and (3) of Regulation (EC) No 40/94)

(2006/C 281/59)

Language of the case: Italian

Parties

Applicant: Monte di Massima SAS di Pruneddu Leonardo & C. (Viddalba, Italy) (represented by: E. Masu and P. Pittalis, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: M.L. Capostagno, acting as Agent)

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: J.M. Höfferle Internationale Handelsgesellschaft mbH (Hamburg, Germany) (represented by: G. Brugmann, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 24 Noevember 2004 (Case R 269/2004-1), concerning opposition proceedings between Monte di Massima SAS di Pruneddu Leonardo & C. and J.M. Höfferle Internationale Handelsgesellschaft mbH.

Operative part

The Court

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

1.

Dismisses the action;

| 2. | Orders the applicant to pay the costs incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) and by the intervener. |
| --- | --- |

2.

Orders the applicant to pay the costs incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) and by the intervener.

---

(1)  OJ C 115, 14.5.2005

---

| 18.11.2006 | EN | Official Journal of the European Union | C 281/35 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/35

---

Judgment of the Court of First Instance of 7 September 2006 — Meric v OHIM — Arbora & Ausonia (PAM-PIM'S BABY-PROP)

(Case T-133/05) (1)

(Community trade mark - Opposition proceedings - Earlier national figurative and word marks PAM-PAM - Application for Community word mark PAM-PIM'S BABY-PROP - Relative ground for refusal - Article 8(1)(b) of Regulation (EC) No 40/94)

(2006/C 281/60)

Language of the case: French

Parties

Applicant: Gérard Meric (Paris, France) (represented by: P. Murzeau, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Rassat, Agent)

Other party to the proceedings before the Board of Appeal of OHIM: Arbora & Ausonia, SL (Barcelona, Spain)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 17 January 2005 in Case R 250/2004-1, regarding the opposition of the proprietor of the national word and figurative marks PAM-PAM to the registration of the word mark PAM-PIM'S BABY-PROP (opposition proceedings No B 505 067).

Operative part of the judgment

The Court:

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

1.

Dismisses the action;

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

2.

Orders the applicant to pay the costs.

---

(1)  OJ C 143, 11.6.2005.

---

| 18.11.2006 | EN | Official Journal of the European Union | C 281/35 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/35

---

Order of the Court of First Instance of 6 September 2006 — Bayer CropScience and Others v Commission

(Case T-34/05) (1)

(Plant protection products - Active substance endosulfan - Reexamination of authorisation for placing products on the market - Action for failure to act - No need to adjudicate)

(2006/C 281/61)

Language of the case: English

Parties

Applicants: Bayer CropScience AG (Monheim, Germany), Makhteshim-Agan Holding BV (Amsterdam, Netherlands), Alfa Georgika Efodia AEVE (Athens, Greece) and Aragonesas Agro, SA (Madrid, Spain) (represented by: C. Mereu and K. Van Maldegem, lawyers)

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

Intervener in support of the applicants: European Crop Protection Association (ECPA) (Brussels, Belgium) (represented by: D. Waelbroeck, U. Zinsmeister and N. Rampal, lawyers)

Intervener in support of the defendant: Kingdom of Spain (represented by: J. Rodríguez Cárcamo, lawyer)

Re:

Action for failure to act seeking a declaration that the Commission unlawfully failed to review the data submitted by the applicants in the course of the procedure for review of the authorisation to place the active substance endosulfan on the market, laid down by Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1).

Operative part of the order

| 1. | There is no need to adjudicate on the present application. |
| --- | --- |

1.

There is no need to adjudicate on the present application.

| 2. | The Commission and the applicants shall bear their own costs. |
| --- | --- |

2.

The Commission and the applicants shall bear their own costs.

| 3. | With regard to costs incurred in connection with the application for interim measures, the Commission and the applicants shall to bear their own costs. |
| --- | --- |

3.

With regard to costs incurred in connection with the application for interim measures, the Commission and the applicants shall to bear their own costs.

| 4. | The Kingdom of Spain and the European Crop Protection Association shall bear their own costs. |
| --- | --- |

4.

The Kingdom of Spain and the European Crop Protection Association shall bear their own costs.

---

(1)  OJ C 93, 16.4.2005.

---

| 18.11.2006 | EN | Official Journal of the European Union | C 281/36 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/36

---

Order of the Court of First Instance of 5 September 2006 — Comunidad autónoma de Madrid and Mintra v Commission

(Case T-148/05) (1)

(Provision of data relating to the excessive deficit procedure - Regulation (EC) No 3605/93 - European system of accounts 1995 (ESA 95) - Regulation (EC) No 2223/96 - Letter of the Statistical Office of the European Communities (Eurostat) - Action for annulment - Act against which proceedings can be brought - Inadmissibility)

(2006/C 281/62)

Language of the case: Spanish

Parties

Applicants: Comunidad autónoma de Madrid and Madrid, infraestructuras del transporte (Mintra) (Madrid, Spain) (represented by: C. Fernandez Vicién, D. Ortega Peciña and J. Sabater Marotias, lawyers)

Defendant: Commission of the European Communities (represented by: M. Diaz-Llanos La Roche and L. Escobar Guerrero, Agents)

Re:

Application for annulment of the decision of the Commission contained in a letter of the Statistical Office of the European Communities (Eurostat) of 3 February 2005 concerning the classification of Madrid, infraestructuras del transporte (Mintra) in the sector ‘public administrations’ within the European system of accounts 1995 (ESA 1995).

Operative part of the order

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

1.

The action is dismissed as inadmissible;

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

2.

The applicants shall pay the costs.

---

(1)  OJ C 143 of 11.6.2005.

---

| 18.11.2006 | EN | Official Journal of the European Union | C 281/36 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/36

---

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

(Case T-242/05) (1)

(Copyright and related rights - Proceedings for a declaration of failure to fulfil obligations - Closure of procedure on a complaint submitted by an individual - Action for annulment - Inadmissibility)

(2006/C 281/63)

Language of the case: Greek

Parties

Applicant: Elliniki Etaireia pros Prostasian tis Pnevmatikis Idioktisias (AEPI AE) (Maroussi, Greece) (represented by: T. Asprogerakas-Grivas, lawyer)

Defendant: Commission of the European Communities (represented by: T. Christoforou and F. Castillo de la Torre, Agents)

Re:

Application for annulment of the decision of the Commission of 20 April 2005 not to initiate proceedings against the Greek Republic for a declaration of failure to fulfil obligations and an application that a ruling be given on the substance.

Operative part of the order

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

1.

The action is dismissed as inadmissible;

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

2.

The applicant shall pay the costs.

---

(1)  OJ C 205 of 20.8.05.

---

| 18.11.2006 | EN | Official Journal of the European Union | C 281/37 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/37

---

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

(Case T-350/05) (1)

(Preliminary issues - Objection of inadmissibility - Act without binding legal effect - Own resources of the European Communities - Infringement procedure - Default interest provided for in Article 11 of Regulation (EC, Euratom) No 1150/2000 - Negotiation of an agreement on a conditional payment)

(2006/C 281/64)

Language of the case: Finnish

Parties

Applicant: Republic of Finland (represented by: T. Pynnä and E. Bygglin, Agents)

Defendant: Commission of the European Communities (represented by: P. Aalto and G. Wilms, Agents)

Re:

Action for annulment of the decision of the Commission (General Secretariat) contained in the letter of 8 July 2005, by which the Commission refused to open negotiations with the Republic of Finland concerning the conditional payment of duties claimed retroactively together with default interest accrued up to the date of payment of those duties, claimed by the Commission from the Republic of Finland in the context of infringement procedure No 2003/2180, brought under Article 226 EC.

Operative part of the order

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

1.

The action is dismissed as inadmissible;

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

The Republic of Finland is ordered to pay the costs.

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(1)  OJ C 281, 12.11.2005.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/37 |
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18.11.2006

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Official Journal of the European Union

C 281/37

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Action brought on 22 August 2006 — Otto v OHIM — L'Altra Moda (l'Altra Moda)

(Case T-224/06)

(2006/C 281/65)

Language in which the application was lodged: English

Parties

Applicant: Otto (GmbH & Co KG) (Hamburg, Germany) (represented by: C. Rohnke and M. Munz, lawyers)

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

Other party to the proceedings before the Board of Appeal: L'Altra Moda SpA (Rome, Italy)

Form of order sought

| — | Annul the decision of the Second Board of Appeal dated 22 June 2006, docket No R793/2005-2; |
| --- | --- |

—

Annul the decision of the Second Board of Appeal dated 22 June 2006, docket No R793/2005-2;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: L'Altra Moda SpA.

Community trade mark concerned: The figurative mark ‘l'Altra Moda’ for goods in classes 3, 18 and 25

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

Mark or sign cited: The national figurative mark ‘Alba Moda’ for goods in class 25

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

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Violation of Article 8(1)(b) of Council Regulation No 40/94 as the Board of Appeal wrongly considered the conflicting trade marks to be dissimilar.

Violation of Article 73 of the regulation as the Board of Appeal did not inform the applicant that it intended to reject the argument of increased distinctiveness and to disregard the applicant's pleading in this regard.

Violation of Article 74 of the regulation as the Board of Appeal did not take the necessary steps to determine the degree of distinctiveness of the trade mark ‘Alba Moda’.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/38 |
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18.11.2006

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Official Journal of the European Union

C 281/38

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Appeal brought on 11 September 2006 by Ott and Others against the order of 30 June 2006 by the Civil Service Tribubal in Case F-87/05 Ott and Others v Commission

(Case T-250/06 P)

(2006/C 281/66)

Language of the case: French

Parties

Appellants: Martial Ott (Oberanven, Luxembourg), Fernando Lopez Tola (Luxembourg, Luxembourg) et Francis Weiler (Itzig, Luxembourg) (represented by: F. Frabetti, lawyer)

Other party to the proceedings: Commission of the European Communities

Forms of order sought

| — | Annul the order of the Civil Service Tribunal of 30 June 2006 in Case F-87/05; |
| --- | --- |

—

Annul the order of the Civil Service Tribunal of 30 June 2006 in Case F-87/05;

| — | Rule on the expenses, costs and fees and order the Commission to pay them. |
| --- | --- |

—

Rule on the expenses, costs and fees and order the Commission to pay them.

Pleas in law and main arguments

In their appeal, the appellants claim that the Court of First Instance committed breaches of procedure in rejecting the application as manifestly inadmissible as regards Mr Weiler. In addition, the applicants contend that the Civil Service Tribunal committed breaches of procedure when considering the substance of the pleas based on infringement of Article 45 of the Staff Regulations of Officials of the European Communities, infringement of the GIP of Article 45, infringement of the principle of non-discrimination and a manifest error of assessment.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/38 |
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18.11.2006

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Official Journal of the European Union

C 281/38

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Appeal brought on 7 September 2006 by Beau against the judgment of the Civil Service Tribunal delivered on 28 June 2006 in Case F-39/05, Beau v Commission

(Case T-252/06 P)

(2006/C 281/67)

Language of the case: French

Parties

Appellant: Marie-Yolande Beau (Paris, France) (represented by S. Rodrigues and C. Bernard-Glanz, lawyers)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

| — | declare the present appeal admissible; |
| --- | --- |

—

declare the present appeal admissible;

| — | annul the judgment delivered by the Civil Service Tribunal on 28 June 2006 in Case F-39/05; |
| --- | --- |

—

annul the judgment delivered by the Civil Service Tribunal on 28 June 2006 in Case F-39/05;

| — | grant the pleas for annulment and compensation submitted by the appellant at first instance; |
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—

grant the pleas for annulment and compensation submitted by the appellant at first instance;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

In her appeal, the appellant alleges, firstly, that the Tribunal infringed Community law by an incorrect legal classification of certain facts and, secondly, that it committed a procedural error infringing her rights of the defence.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/38 |
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18.11.2006

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Official Journal of the European Union

C 281/38

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Appeal brought on 8 September 2006 by Chassagne against the order of the Civil Service Tribunal delivered on 29 June 2006 in Case F-11/05, Chassagne v Commission

(Case T-253/06 P)

(2006/C 281/68)

Language of the case: French

Parties

Appellant: Olivier Chassagne (Brussels, Belgium) (represented by S. Rodrigues and C. Bernard-Glanz, lawyers)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

The Court is asked to:

| — | annul the order made by the Civil Service Tribunal on 29 June 2006 in Case F-11/05; |
| --- | --- |

—

annul the order made by the Civil Service Tribunal on 29 June 2006 in Case F-11/05;

| — | allow the claims for annulment and compensation submitted by the applicant at first instance |
| --- | --- |

—

allow the claims for annulment and compensation submitted by the applicant at first instance

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

—

order the defendant to pay the costs in their entirety.

Pleas in law and main arguments

By the first plea in his appeal, the applicant submits that the Tribunal committed a breach of procedure adversely affecting his right to a fair hearing in that he was not able to submit his observations regarding the documents on which the Tribunal based its arguments and that certain matters raised by the applicant and documents lodged during the procedure were not taken into consideration. By his second plea, the applicant claims that the Tribunal infringed Community law by distorting the pleas relied on in the action and by incorrectly interpreting the provisions of the Staff Regulations of officials of the European Communities. He also submits that the Tribunal made manifest errors of assessment of the facts.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/39 |
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18.11.2006

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Official Journal of the European Union

C 281/39

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Action brought on 15 September 2006 — Budějovický Budvar v OHIM — Anheuser-Busch (BUD)

(Case T-255/06)

(2006/C 281/69)

Language in which the application was lodged: French

Parties

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

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

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

Form of order sought

| — | annul the contested decision R 241/2005-2 of 28 June 2006 of the Second Board of Appeal of OHIM; |
| --- | --- |

—

annul the contested decision R 241/2005-2 of 28 June 2006 of the Second Board of Appeal of OHIM;

| — | reject application No 1 257 849 for registration of the Community trade mark ‘BUD’ for all of the goods which it designates in Classes 16, 21, 25 and 32; |
| --- | --- |

—

reject application No 1 257 849 for registration of the Community trade mark ‘BUD’ for all of the goods which it designates in Classes 16, 21, 25 and 32;

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

—

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

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

—

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

Pleas in law and main arguments

Applicant for the Community trade mark: Anheuser-Busch, Incorporated

Community trade mark concerned: Figurative mark ‘BUD’ for goods in Classes 16, 21, 25 and 32 — Application No 1 257 849

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

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

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

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

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

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

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/39 |
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18.11.2006

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Official Journal of the European Union

C 281/39

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Action brought on 15 September 2006 — Budějovický Budvar v OHIM — Anheuser-Busch (word mark ‘BUD’)

(Case T-257/06)

(2006/C 281/70)

Language in which the application was lodged: French

Parties

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

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

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

Form of order sought

| — | annul the contested decision R 802/2004-2 of 28 June 2006 of the Second Board of Appeal of OHIM; |
| --- | --- |

—

annul the contested decision R 802/2004-2 of 28 June 2006 of the Second Board of Appeal of OHIM;

| — | reject application No 1 737 121 for registration of the word mark ‘BUD’ to designate services in Classes 35, 38, 41 and 42; |
| --- | --- |

—

reject application No 1 737 121 for registration of the word mark ‘BUD’ to designate services in Classes 35, 38, 41 and 42;

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

—

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

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

—

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

Pleas in law and main arguments

Applicant for the Community trade mark: Anheuser-Busch, Incorporated

Community trade mark concerned: Word mark ‘BUD’ for services in Classes 35, 38, 41 and 42 — Application No 1 737 121

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

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

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

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

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

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

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/40 |
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18.11.2006

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Official Journal of the European Union

C 281/40

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Action brought on 15 September 2006 — Arktouros v Commission

(Case T-260/06)

(2006/C 281/71)

Language of the case: Greek

Parties

Applicant: Arktouros (Association for the Protection and Management of the Natural Environment and Wildlife) (Thessaloniki, Greece) (represented by: N. Korogiannakis and N. Keramidas, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | annul Commission Decision C (2006)3181 final of 7 July 2006, notified to the applicant on 10 July 2006, concerning the ending of the programme ‘Conservation actions in the Northern Pindos National Park’ — Ellas — LIFE03 NAT/GR/000089 and relating to the reimbursement of assistance amounting to EUR 264 684,00 together with default interest amounting to EUR 4 659,53; |
| --- | --- |

—

annul Commission Decision C (2006)3181 final of 7 July 2006, notified to the applicant on 10 July 2006, concerning the ending of the programme ‘Conservation actions in the Northern Pindos National Park’ — Ellas — LIFE03 NAT/GR/000089 and relating to the reimbursement of assistance amounting to EUR 264 684,00 together with default interest amounting to EUR 4 659,53;

| — | exclude a sum amounting to EUR 55 658,28 from the sum to be repaid, in respect of eligible expenditure incurred in connection with the programme; |
| --- | --- |

—

exclude a sum amounting to EUR 55 658,28 from the sum to be repaid, in respect of eligible expenditure incurred in connection with the programme;

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

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant submits, first, that the infringement by the Commission of a provision contained in the LIFE Standard Administrative Provisions constitutes an infringement of a rule of law under Article 230 EC, rendering Commission Decision C (2006)3181 final invalid.

Second, the applicant submits that the Commission made a material error of assessment regarding the applicant's ability to complete the programme despite the departure of two of its members, an error which justifies annulment of the Commission decision concerning termination of the agreement and recovery of the assistance granted.

In the alternative, the applicant seeks the exclusion of the sum of EUR 55 658,28 from the sum to be repaid, in respect of eligible expenditure incurred in connection with the programme.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/41 |
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18.11.2006

EN

Official Journal of the European Union

C 281/41

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Action brought on 25 September 2006 — Greece v Commission

(Case T-263/06)

(2006/C 281/72)

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by: I. Khalkias, G. Kanellopoulos)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the Commission Decision of 27 July 2006 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), notified under document number C(2006) 3331 final and published under number 2006/554/EC (1); |
| --- | --- |

—

annul the Commission Decision of 27 July 2006 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), notified under document number C(2006) 3331 final and published under number 2006/554/EC (1);

| — | in the alternative, alter it as set out more specifically below; |
| --- | --- |

—

in the alternative, alter it as set out more specifically below;

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

order the Commission to pay the costs.

Pleas in law and main arguments

By the contested decision, the Commission, clearing accounts under Regulation (EEC) No 729/70 (2), excluded from Community financing inter alia certain expenditure which had been incurred by the Hellenic Republic in the area of measures accompanying rural development and had been declared under the Guarantee Section of the EAGGF.

The applicant advances as a general ground for annulment of Commission Decision C(2006) 3331 final the infringement of an essential requirement of the procedure for clearing accounts laid down in subparagraph (a) of the third subparagraph of Article 8(1) of Regulation No 1663/95 (3). Specifically, it submits that the Commission failed to engage in a bilateral discussion with the Greek authorities on an evaluation of the gravity of the infringements attributed to them and the financial loss to the Community; in the alternative it raises the Commission's lack of power ratione temporis to impose the financial corrections at issue.

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(1)  OJ L 218, 9.8.2006, p. 12.

(2)  Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy (OJ, English Special Edition 1970 (I), p. 218).

(3)  Commission Regulation (EC) No 1663/95 of 7 July 1995 laying down detailed rules for the application of Council Regulation (EEC) No 729/70 regarding the procedure for the clearance of the accounts of the EAGGF Guarantee Section (OJ L 158, 8.7.1995, p. 6).

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/41 |
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18.11.2006

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Official Journal of the European Union

C 281/41

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Action brought on 25 September 2006 — Italian Republic v Commission

(Case T-267/06)

(2006/C 281/73)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: G. Aiello, Avvocato dello Stato)

Defendant: Commission of the European Communities

Form of order sought

| — | Annul Commission Decision C (2006) 3331 of 27 July 2006, notified on 28 July 2006, in so far as it excludes from Community financing certain expenditure incurred by the Italian Republic under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF); |
| --- | --- |

—

Annul Commission Decision C (2006) 3331 of 27 July 2006, notified on 28 July 2006, in so far as it excludes from Community financing certain expenditure incurred by the Italian Republic under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF);

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

—

Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The present action is brought against Commission Decision C (2006) 3331 of 27 July 2006 in so far as it excludes from Community financing certain expenditure incurred by the Italian Republic under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF).

In support of its claim, the applicant alleges infringement and misapplication of:

| — | Paragraph 4(iv) of the Annex to Commission Regulation (EC) No 1663/95 of 7 July 1995 laying down detailed rules for the application of Council Regulation (EEC) No 729/70 regarding the procedure for the clearance of the accounts of the EAGGF Guarantee Section (OJ 1995 L 158 of 8.7.1995, p. 6); |
| --- | --- |

—

Paragraph 4(iv) of the Annex to Commission Regulation (EC) No 1663/95 of 7 July 1995 laying down detailed rules for the application of Council Regulation (EEC) No 729/70 regarding the procedure for the clearance of the accounts of the EAGGF Guarantee Section (OJ 1995 L 158 of 8.7.1995, p. 6);

| — | Article 4(3), Article 17(2), Article 23, Article 24 and Article 30(1) and (2) of Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organisation of the market in fruit and vegetables (OJ 1996 L 297 of 21.11.1996, p. 1); |
| --- | --- |

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Article 4(3), Article 17(2), Article 23, Article 24 and Article 30(1) and (2) of Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organisation of the market in fruit and vegetables (OJ 1996 L 297 of 21.11.1996, p. 1);

| — | Article 17(2) and (3) of Commission Regulation (EC) No 659/97 of 16 April 1997 laying down detailed rules for the application of Regulation (EC) No 2200/96 (OJ 1997 L 100 of 17.4.1997, p. 22); |
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Article 17(2) and (3) of Commission Regulation (EC) No 659/97 of 16 April 1997 laying down detailed rules for the application of Regulation (EC) No 2200/96 (OJ 1997 L 100 of 17.4.1997, p. 22);

| — | Article 4(3), Article 8 and Article 24(3) of, and Paragraph 2(a) of Annex III to, Commission Regulation (EC) No 562/2000 of 15 March 2000 laying down detailed rules for the application of Regulation (EC) No 1254/1999 on the common organisation of the market in beef and veal (OJ 2000 L 68 of 16.3.2000, p. 22). |
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Article 4(3), Article 8 and Article 24(3) of, and Paragraph 2(a) of Annex III to, Commission Regulation (EC) No 562/2000 of 15 March 2000 laying down detailed rules for the application of Regulation (EC) No 1254/1999 on the common organisation of the market in beef and veal (OJ 2000 L 68 of 16.3.2000, p. 22).

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/42 |
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18.11.2006

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Official Journal of the European Union

C 281/42

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Action brought on 21 September 2006 — Rautaruukki v OHIM (RAUTARUUKKI)

(Case T-269/06)

(2006/C 281/74)

Language of the case: English

Parties

Applicant: Rautaruukki Oyj (Helsinki, Finland) (represented by: P. Hagman, lawyer)

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

Form of order sought

The applicant requests that the Court of First Instance:

| — | annuls the decision of the Fourth Board of Appeal of July 21, 2006 and establishes that the applied Community Trademark application No 3 608 081 RAUTARUUKKI shall be considered distinctive and registrable, and remits the case to OHIM for registration purposes; |
| --- | --- |

—

annuls the decision of the Fourth Board of Appeal of July 21, 2006 and establishes that the applied Community Trademark application No 3 608 081 RAUTARUUKKI shall be considered distinctive and registrable, and remits the case to OHIM for registration purposes;

| — | orders the defendant OHIM to pay the applicant's costs in these proceedings. |
| --- | --- |

—

orders the defendant OHIM to pay the applicant's costs in these proceedings.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘RAUTARUUKKI’ for goods in among others class 6 — application No 3 608 081

Decision of the examiner: Refusal of the application for the goods applied for in class 6

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(3) of Council Regulation No 40/94 since the trade mark ‘RAUTARUUKKI’ has become distinctive in respect of the goods applied for in class 6 after an extensive long-term use of the mark.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/42 |
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18.11.2006

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Official Journal of the European Union

C 281/42

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Action brought on 9 October 2006– Sun Chemical Group and others v Commission

(Case T-282/06)

(2006/C 281/75)

Language of the case: English

Parties

Applicants: Sun Chemical Group BV (Weesp, The Netherlands), Siegwerk Druckfarben AG (Siegburg, Germany), Flint Group Germany GmbH (Stuttgart, Germany) (represented by: N. Dodoo, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | Annulment of Commission Decision COMP/M.4071 — Apollo/Akzo Nobel IAR of 29 May 2006; |
| --- | --- |

—

Annulment of Commission Decision COMP/M.4071 — Apollo/Akzo Nobel IAR of 29 May 2006;

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

—

order the Commission to bear the costs.

Pleas in law and main arguments

The application at stake is made pursuant to Article 230 EC for the annulment of Commission Decision COMP/M.4071— Apollo/Akzo Nobel IAR of 29 May 2006, declaring a notified concentration compatible with the common market.

The applicants claim that the Commission cleared the concentration unconditionally, without affording it the careful, detailed and consistent review that it warranted, considering the serious competition concerns it allegedly raised. According to the applicants, a review of the decision, an assessment of the applicants' respective responses to the Commission's market investigation, and an examination of the salient features of the industry demonstrate that the Commission failed to consider or, where it purports to do so, ignored evidence that was vital for a complete and accurate assessment of the notified concentration.

Moreover, the applicants submit that the Commission has not merely ignored its own guidelines on the assessment of horizontal mergers (1), but also the complaints expressed and the evidence supplied by them. In fact, the Commission apparently relied in several respects, solely on information provided by the merging parties without verifying its accuracy, resulting in a decision tainted with errors of law, fact and appreciation.

Considering the circumstances outlined above, the Commission should have provided, as the applicants maintain, motivated reasoning for clearing the notified operation. Having failed to do so entails a violation of its duty to state reasons and thus of Article 253 EC.

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(1)  OJ 2004 C 31, p. 5-18

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/43 |
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Order of the Court of First Instance of 27 September 2006 — Izar Construcciones Navales v Commission

(Case T-381/03) (1)

(2006/C 281/76)

Language of the case: Spanish

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

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(1)  OJ C 21, 24.1.2004.

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Order of the Court of First Instance of 27 September 2006 — Izar Construcciones Navales v Commission

(Case T-382/03) (1)

(2006/C 281/77)

Language of the case: Spanish

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

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(1)  OJ C 21, 24.1.2004.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/43 |
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Order of the Court of First Instance of 27 September 2006 — Drazdansky v OHIM — Bad Heilbrunner Naturheilmittel (VITACAN)

(Case T-383/04) (1)

(2006/C 281/78)

Language of the case: German

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

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(1)  OJ C 314, 18.12.2004.

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EUROPEAN UNION CIVIL SERVICE TRIBUNAL

| 18.11.2006 | EN | Official Journal of the European Union | C 281/44 |
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Action brought on 21 July 2006 — Duyster v Commission

(Case F-82/06)

(2006/C 281/79)

Language of the case: Dutch

Parties

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

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Tribunal should

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

—

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

| — | annul that part of the Appointing Authority's decision of 11 May 2006 which concerns complaint R/91/06 or, in the alternative, annul the decision in part; |
| --- | --- |

—

annul that part of the Appointing Authority's decision of 11 May 2006 which concerns complaint R/91/06 or, in the alternative, annul the decision in part;

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

—

order the defendant to pay the costs;

| — | in addition to the foregoing, the applicant seeks the same forms of order as she has already sought in Case F-18/06 (1). |
| --- | --- |

—

in addition to the foregoing, the applicant seeks the same forms of order as she has already sought in Case F-18/06 (1).

Pleas in law and main arguments

In Cases F-51/05 (2) and F-18/06, the applicant has already challenged the fact that the Commission first granted her parental leave from 1 November 2004 to 30 April 2005 and, then, by letter of 17 November 2005, set the date of the start of her parental leave at 8 November 2004.

Having doubts as to the legal characterisation of that final letter, the applicant challenged it on 13 February 2006, simultaneously by means of a complaint and a legal action (F-18/06). The Commission, first, raised a plea of inadmissibility in that action and, second, declared the complaint to be inadmissible by decision of 11 May 2006.

In this case, the applicant submits that the effect of the above is that there is no legal remedy against the decision contained in the letter of 17 November 2005 and that no compensation can be awarded as regards the statements of the Appointing Authority contained in it. That infringes, inter alia, the Staff Regulations and the legal principles common to the Member States and the Communities.

In support of her action against the decision of inadmissibility, the applicant pleads, inter alia: (i) that the decision was based on incorrect evidence; (ii) the infringement of the content and the purpose of Article 90 of the Staff Regulations; (iii) the existence of contradictions; (iv) that the decision lacked clarity and was negligent; (v) the infringement of the content and purpose of Articles 24 and 25 of the Staff Regulations; (vi) the situation of uncertainty created by the Commission regarding the legal characterisation of the letter of 17 November 2005; (viii) the infringement of the principles of proportionality, the protection of legitimate expectations, equal treatment and legal certainty and the infringement of the principle that interests must be weighed against one another, failure to comply with the employer's duty to provide information, infringement of the right to a legal remedy, infringement of the principle of legality and the principle of sound administration; (ix) the lack of evidence for the Appointing Authority's statement that the content of the request made by the applicant is already included in Case F-51/05.

As regards the substance of the case, the applicant puts forward very similar pleas to those which she put forward in Case F-18/06.

---

(1)  OJ C 154, 1.7.2006.

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

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/44 |
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Official Journal of the European Union

C 281/44

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Action brought on 28 July 2006 — Pantalis v Commission

(Case F-88/06)

(2006/C 281/80)

Language of the case: Greek

Parties

Applicant: Ioannis Pantalis (Brussels, Belgium) (represented by: N. Korogiannakis and N. Keramidas, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Tribunal should:

| — | annul that part of the decision of the Appointing Authority of 18 April 2006 which concerns: (a) the Appointing Authority's implied refusal to adapt the applicant's salary in accordance with the Staff Regulations in respect of a dependent child for whom he has alternating custody, (b) the Appointing Authority's refusal to pay the child's travel expenses to the applicant's place of origin, in accordance with the Staff Regulations; |
| --- | --- |

—

annul that part of the decision of the Appointing Authority of 18 April 2006 which concerns: (a) the Appointing Authority's implied refusal to adapt the applicant's salary in accordance with the Staff Regulations in respect of a dependent child for whom he has alternating custody, (b) the Appointing Authority's refusal to pay the child's travel expenses to the applicant's place of origin, in accordance with the Staff Regulations;

| — | order the retrospective payment of those sums with added interest; |
| --- | --- |

—

order the retrospective payment of those sums with added interest;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, a Commission official with alternating custody of a child whose mother is also an official of the European Communities, requested, on his return to Brussels after a period of secondment outside Europe, payment to him of the allowances and advantages relating to the child. The official dealing with the file called for the production of the original of a declaration of agreement between the former spouses on the readjustment of the applicant's rights in the present case. Since that declaration was only produced by email, the authorities did not grant the applicant's requests.

In support of his action, the applicant pleads infringement of Article 67 of the Staff Regulations and of Articles 7 and 8 of Annex VII to the Staff Regulations, as interpreted by case-law. He submits, inter alia, that the authorities' discretion is not unlimited and they have a duty to comply with the principles of sound administration and proportionality. Also, the supporting documents required must be directly linked to the payment requested and they must be referred to by the applicable provisions, or they must be absolutely necessary in order to set the amount to be paid.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/45 |
| --- | --- | --- | --- |

18.11.2006

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Official Journal of the European Union

C 281/45

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Action brought on 24 August 2006 — Lohiniva v Commission

(Case F-98/06)

(2006/C 281/81)

Language of the case: Finnish

Parties

Applicant: Risto Lohiniva (Brussels, Belgium) (represented by: V. Teperi, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the decision of the Appointing Authority of 30 May 2006 rejecting the complaint brought by the applicant; |
| --- | --- |

—

annul the decision of the Appointing Authority of 30 May 2006 rejecting the complaint brought by the applicant;

| — | decide that the applicant continues to have the right to transfer to Finland 35 % of his net salary, an amount which is adjusted by the transfer coefficient for that country, from 16 January 2006; |
| --- | --- |

—

decide that the applicant continues to have the right to transfer to Finland 35 % of his net salary, an amount which is adjusted by the transfer coefficient for that country, from 16 January 2006;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant was transferring to Finland, his country of origin, a part of his salary, as multiplied by a coefficient, in accordance with Article 17 of Annex VII to the old Staff Regulations. In the context of a programme of exchange of officials between the Commission and the Member States, he was transferred to Finland during the years 2004 and 2005. During this period, the Commission paid him all of his salary in Finland, increased by the application of the transfer coefficient. In January 2006, upon his return to Brussels, the applicant was refused the right to resume the transfer to Finland of the part of his salary that he had been transferring before his move. In that regard, the administration pointed out that the abovementioned provision had been amended following the entry into force of the new Staff Regulations, and that the applicant did not satisfy the condition laid down in Article 17(2)(a) of Annex XIII to the Staff Regulations for the preservation of that benefit.

In his application, the applicant submits that, since he benefited from the transfer both during the time of his posting to Finland and before, his case falls within the circumstances envisaged by Article 17(2)(a) of Annex XIII to the Staff Regulations.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/45 |
| --- | --- | --- | --- |

18.11.2006

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Official Journal of the European Union

C 281/45

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

(Case F-105/06)

(2006/C 281/82)

Language of the case: French

Parties

Applicants: Johannes Lübking (Brussels, Belgium) and Others (represented by: B. Cortese and C. Cortese, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicants claim that the Tribunal should:

| — | annul the decision of the Appointing Authority published in Administrative Notice No 85-2005 of 23 November 2005, in so far as it provided for the applicants' promotion to grade A*9, step 1; |
| --- | --- |

—

annul the decision of the Appointing Authority published in Administrative Notice No 85-2005 of 23 November 2005, in so far as it provided for the applicants' promotion to grade A*9, step 1;

| — | so far as necessary, annul the Appointing Authority's decision of 23 May 2006 in so far as it rejected the complaint submitted by the applicants; |
| --- | --- |

—

so far as necessary, annul the Appointing Authority's decision of 23 May 2006 in so far as it rejected the complaint submitted by the applicants;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicants, Commission officials, challenge the Appointing Authority's decision to promote them in the 2005 promotion procedure to grade A*9, a new grade inserted since 1 May 2004 between grades A*8 (formerly A7) and A*10 (formerly A6). They claim that the Appointing Authority should have promoted them, not to grade A*9 but to grade A*10, as it did in the 2004 promotion procedure for officials who, like the applicants, on 30 April 2004 were classified in grade A7 and were eligible for promotion to the higher grade A6.

In support of their action, the applicants raise three pleas, the first of which alleges infringement of the principles of equal treatment and reasonable career prospects. The applicants claim that, in accordance with those principles, the officials who on 30 April 2004 were classified in grade A7 (renamed grade A*8 from 1 May 2004) and were eligible for promotion to the higher grade should all be subject to identical conditions as regards career progress. However, the officials who were promoted in November 2004 in the 2004 procedure — thus after the entry into force of the new Staff Regulations — were appointed after promotion to grade A*10, while those — such as the applicants — promoted in the 2005 procedure were only appointed to a lower grade, namely the intermediate grade A*9, even though the two groups of persons referred to above were in a position which was comparable in all respects.

In connection with this plea, the applicants also raise a plea of illegality for the purpose of Article 241 EC of the General Implementing Provisions ('GIP') of Article 45 of the Staff Regulations applicable to the 2005 promotion procedure or, more fundamentally, of Article 45 of Annex XIII to the Staff Regulations, in that those provisions did not lay down transitional measures intended to ensure the observance of the principles of equal treatment and reasonable career prospects between officials who were of grade A7 on 30 April 2004 and eligible for promotion on that date to the higher grade A6.

By their second plea, the applicants allege there was an infringement of the principle of the protection of legitimate expectations. They claim, inter alia, that Article 10(5) of the GIP of Article 45 of the Staff Regulations applicable to the 2004 promotion procedure guarantees to A7 officials eligible for promotion on 30 April 2004 (and reclassified as A*8 on 1 May 2004) career progress conditions comparable to those which they would have had under the career structure applicable until that date, by providing for, by means of a legal fiction (retroactive promotion) their promotion from grade A*8 directly to grade A*10. The applicants maintain that the adoption of that transitional measure created the legitimate expectation on their part that a measure having the same effect would also be adopted in subsequent promotion procedures.

The third plea alleges that no reasons were stated for the contested decision. The applicants claim in that regard that, even if, by its nature, the promotion decision does not need to contain specific reasons for the Appointing Authority's choice, the authorities are nevertheless required to give reasons for their choice in the reply to the complaint brought against that decision. However, in the present case, the Appointing Authority only answered the complaints set out by the applicants very superficially and, in particular, did not answer the fundamental question raised by the complaint, which is connected with the inequality of treatment between A7 officials (reclassified as A*8) promoted in the 2005 promotion procedure and their counterparts promoted in the 2004 promotion procedure.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/46 |
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C 281/46

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Action brought on 1st September 2006 — Erbežnik v European Parliament

(Case F-106/06)

(2006/C 281/83)

Language of the case: Slovenian

Parties

Applicant: Anže Erbežnik (Luxembourg, Luxembourg) (represented by: P. Peče, Lawyer)

Defendant: European Parliament

Form of order sought

| — | annul the decision of the Secretary General of the European Parliament No 110029 of 1st June 2006; |
| --- | --- |

—

annul the decision of the Secretary General of the European Parliament No 110029 of 1st June 2006;

| — | deliver a ruling in which the applicant is identified as a person who had a lawful non-marital relationship recognised by the primary and secondary rules of EU legislation with Miss H. (now Mrs Erbežnik) from the start of his work as a Lawyer Linguist for the European Parliament and therefore has right to a full payment by the European Parliament of his installation allowance as it is provided for married officials and is being calculated on the basis of the household allowance; |
| --- | --- |

—

deliver a ruling in which the applicant is identified as a person who had a lawful non-marital relationship recognised by the primary and secondary rules of EU legislation with Miss H. (now Mrs Erbežnik) from the start of his work as a Lawyer Linguist for the European Parliament and therefore has right to a full payment by the European Parliament of his installation allowance as it is provided for married officials and is being calculated on the basis of the household allowance;

| — | alternatively, deliver a decision whereby the European Parliament is obliged to take into account the change in the family status of the applicant (his marriage) in accordance with the principle of proportionality and provide him the full amount on installation allowance (for married officials) for the parts of the installation allowance paid after his marriage in August 2005; |
| --- | --- |

—

alternatively, deliver a decision whereby the European Parliament is obliged to take into account the change in the family status of the applicant (his marriage) in accordance with the principle of proportionality and provide him the full amount on installation allowance (for married officials) for the parts of the installation allowance paid after his marriage in August 2005;

| — | order the defendant to pay default interest; |
| --- | --- |

—

order the defendant to pay default interest;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

From the time of his recruitment in Slovenia by the European Parliament in September 2003, and prior, the applicant had a stable non-marital relationship with his girl-friend, who became his wife in August 2005. The applicant alleges that this relationship would be legally recognised by Slovenian law.

At the beginning of his employment at the European Parliament, the applicant asked for a household allowance, which was refused on the ground that such an allowance was reserved for married couples and same-sex non-marital relationships in accordance with Article 1 of Annex VII of the Staff Regulations. In May 2005 he applied for an installation allowance, which is equal to two months' basic salary in the case of an official who is entitled to the household allowance, and equal to one month's basic salary in other cases. He was granted the first part of the installation allowance (which is paid in three parts, one part per year) provided for singles. After his marriage, he applied for the part of the installation allowance that is granted to married staff but he was denied on the grounds the change in his family status war posterior to the end of his probationary period.

In support of his action, the applicant relies mainly on the following pleas in law:

| — | first, invalidity of Article 1 (2) (c) and 1 (2) (d) of Annex VII of the Staff Regulations and alternatively wrong interpretation of those articles by the defendant's administration due to infringements of basic Community concepts such as free movements of workers, citizenship of the European Union and free movement of persons, prohibition of discrimination and unequal treatment, and non-respect of basic human rights and of principle of proportionality; |
| --- | --- |

—

first, invalidity of Article 1 (2) (c) and 1 (2) (d) of Annex VII of the Staff Regulations and alternatively wrong interpretation of those articles by the defendant's administration due to infringements of basic Community concepts such as free movements of workers, citizenship of the European Union and free movement of persons, prohibition of discrimination and unequal treatment, and non-respect of basic human rights and of principle of proportionality;

| — | Secondly, wrong interpretation of the date of the end of the probationary period as an absolute definitive date for the installation allowance although the payments themselves are being carried out in a three years period. |
| --- | --- |

—

Secondly, wrong interpretation of the date of the end of the probationary period as an absolute definitive date for the installation allowance although the payments themselves are being carried out in a three years period.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/47 |
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18.11.2006

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Official Journal of the European Union

C 281/47

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Action brought on 15 September 2006 — Dittert v Commission

(Case F-109/06)

(2006/C 281/84)

Language of the case: French

Parties

Applicant: Daniel Dittert (Luxembourg, Luxembourg) (represented by: B. Cortese and C. Cortese, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the decision of the Appointing Authority to award a number of priority points to the applicant which was insufficient to allow his promotion in the 2005 promotion procedure and not to promote him in that promotion procedure, as confirmed by the decision of 6 June 2006, rejecting the applicant's complaint No R/73/06 |
| --- | --- |

—

annul the decision of the Appointing Authority to award a number of priority points to the applicant which was insufficient to allow his promotion in the 2005 promotion procedure and not to promote him in that promotion procedure, as confirmed by the decision of 6 June 2006, rejecting the applicant's complaint No R/73/06

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

—

order the defendant to pay the costs

Pleas in law and main arguments

In support of his application, the applicant puts forward a single plea: the contested decision is tainted by serious defects resulting from a procedural irregularity and from an infringement of the principle of good administration and of the duty to have regard for the welfare of officials.

Following a technical problem, which remains unexplained, the applicant's file was not taken into account by his Directorate-General when it was allocating priority points in the 2005 promotion procedure. This failure to take the applicant into account constitutes a procedural flaw and an infringement of the principle of good administration and of the duty to have regard for the welfare of officials.

Those irregularities were such as to invalidate the 2005 promotion procedure in so far as it concerned the applicant, and to harm the applicant's interests, since he was allocated fewer priority points than his own superiors (in this case, the Director-General of DG Competition) wished to give him, once the technical problem had been detected. In effect, according to the applicant, DG Competition assured him that, absent the technical problem, it would have allocated to him a sufficient number of points to ensure his promotion to grade AD9, namely 7 points; the DG also expressly asked the A* Promotion Committee to remedy the applicant's situation by allocating that number of points to him. Notwithstanding this, the A* Promotion Committee proposed the allocation of only 4 ‘points awarded on appeal’ to the applicant, and the Appointing Authority followed this advice, with the result that the applicant was allocated an insufficient number of points to allow his promotion to grade AD9 in the 2005 exercise.

The applicant claims that, rather than the remedying of the situation created by the technical problem, the intervention of the A* Promotion Committee and of the Appointing Authority themselves gave rise to procedural irregularities. Thus the A* Promotion Committee exceeded its authority and its powers in proposing to allocate a lower number of points to the applicant than had been proposed by his superiors, once the technical problem had been discovered. Furthermore, both the A* Promotion Committee and the Appointing Authority failed to undertake a real consideration of the applicant's comparative merits.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/48 |
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18.11.2006

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Official Journal of the European Union

C 281/48

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Action brought on 15 September 2006 — Carpi Badía v Commission

(Case F-110/06)

(2006/C 281/85)

Language of the case: French

Parties

Applicant: José María Carpi Badía (Luxembourg, Luxembourg) (represented by: B. Cortese and C. Cortese, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the decision of the Appointing Authority to allocate to the applicant an insufficient number of priority points to allow his promotion in the 2005 promotion procedure and not to promote him in that promotion procedure, as confirmed by the Decision of 6 June 2006, rejecting the applicant's complaint No R/74/06; |
| --- | --- |

—

annul the decision of the Appointing Authority to allocate to the applicant an insufficient number of priority points to allow his promotion in the 2005 promotion procedure and not to promote him in that promotion procedure, as confirmed by the Decision of 6 June 2006, rejecting the applicant's complaint No R/74/06;

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

—

order the defendant to pay the costs

Pleas in law and main arguments

The pleas in law and main arguments relied on in this case are almost identical to those relied on in Case F-109/06, the notice concerning which is published in this issue of the Official Journal of the European Union.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/48 |
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18.11.2006

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C 281/48

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Action brought on 25 September 2006 — Giannopoulos v Council

(Case F-111/06)

(2006/C 281/86)

Language of the case: French

Parties

Applicant: Nikos Giannopoulos (Wezembeek-Oppem, Belgium) (represented by: S. Rodrigues and C. Bernard-Glanz, lawyers)

Defendant: Council of the European Union

Form of order sought

| — | annul the applicant's classification decision as stated in the establishment decision of 18 November 2003 in that it awards him grade A7; |
| --- | --- |

—

annul the applicant's classification decision as stated in the establishment decision of 18 November 2003 in that it awards him grade A7;

| — | annul, in so far as necessary, the appointing authority's decision rejecting the applicant's complaint; |
| --- | --- |

—

annul, in so far as necessary, the appointing authority's decision rejecting the applicant's complaint;

| — | indicate to the appointing authority the effects of the annulment of the contested decisions, and in particular: (i) the applicant is to be reclassified in grade A6, in order to take account of the exceptional nature of his qualifications and the specific needs of the service, with retroactive effect to 18 November 2003; (ii) the applicant is to be reclassified in a step which takes account of his professional experience and is, at least, equivalent to that granted to him on the date of his recruitment; (iii) the applicant is to be paid the difference between the salary corresponding to the grade and step in which he was classified and that corresponding to the grade and step in which he ought to have been classified, plus default interest at the statutory rate from the date on which the amount in question became payable; |
| --- | --- |

—

indicate to the appointing authority the effects of the annulment of the contested decisions, and in particular: (i) the applicant is to be reclassified in grade A6, in order to take account of the exceptional nature of his qualifications and the specific needs of the service, with retroactive effect to 18 November 2003; (ii) the applicant is to be reclassified in a step which takes account of his professional experience and is, at least, equivalent to that granted to him on the date of his recruitment; (iii) the applicant is to be paid the difference between the salary corresponding to the grade and step in which he was classified and that corresponding to the grade and step in which he ought to have been classified, plus default interest at the statutory rate from the date on which the amount in question became payable;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, a successful candidate in open competition EUR/A/127 (1) for the constitution of a reserve for the future recruitment of administrators A7/A6, was recruited by the General Secretariat of the Council and classified in grade A7. Having learnt in July 2005 that other successful candidates in competitions for grades A7/A6 had been recruited by the General Secretariat in grade A6, or reclassified in that grade following an internal administrative review of the initial classification decisions, the applicant submitted a request for reclassification. That request was rejected by the administration, as was the complaint which he subsequently submitted.

In support of his action, the applicant puts forward a first plea in law alleging breach of Article 31(2) of the Staff Regulations, a manifest error of assessment and an error of law, in that the criteria established in the case-law relating to the exceptional nature of his qualifications and the specific needs of the service were not applied. Next, the applicant puts forward a second plea in law alleging breach of the obligation to state reasons and a third plea in law alleging failure to observe the principle of equal treatment, in that 10 to 15 of his colleagues, whose legal and factual situations are not essentially different from the applicant's, were, unlike the applicant, classified or reclassified in grade A6.

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(1)  OJEC C 125/A, 23.4.1998, p. 10.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/49 |
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18.11.2006

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Official Journal of the European Union

C 281/49

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Action brought on 22 September 2006 — Krčová v Court of Justice

(Case F-112/06)

(2006/C 281/87)

Language of the case: French

Parties

Applicant: Erika Krčová (Trnava, Slovakia) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Court of Justice of the European Communities

Form of order sought

The applicant claims that the Tribunal should:

| — | annul the Court of Justice's decision of 18 October 2005 to dismiss the applicant at the end of her probationary period and, in so far as necessary, the Court of Justice's decisions of 16 September 2005, extending her probationary period for two months from the preceding 1 August, and of 12 September 2005, establishing a probation report recommending the applicant's dismissal; |
| --- | --- |

—

annul the Court of Justice's decision of 18 October 2005 to dismiss the applicant at the end of her probationary period and, in so far as necessary, the Court of Justice's decisions of 16 September 2005, extending her probationary period for two months from the preceding 1 August, and of 12 September 2005, establishing a probation report recommending the applicant's dismissal;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

In support of her action, the applicant invokes three pleas in law, the first of which alleges breach of Article 34 of the Staff Regulations, breach of the duty to have regard for the welfare of officials, manifest error of assessment, failure to state the grounds and breach of essential procedural requirements. In particular, the appointing authority, in adopting the contested decisions, failed to comply with the time-limits laid down in Article 34 of the Staff Regulations and failed, among other things, to ensure that the conditions of the applicant's probationary period were proper.

The second plea in law alleges misuse of powers and abuse of process by the Complaints Committee of the Court of Justice.

The third plea in law alleges breach of the principles of sound administration and good management and interference with the rights of the defence.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/49 |
| --- | --- | --- | --- |

18.11.2006

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Official Journal of the European Union

C 281/49

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Action brought on 29 September 2006 — Bouis and Others v Commission

(Case F-113/06)

(2006/C 281/88)

Language of the case: French

Parties

Applicants: Didier Bouis (Overijse, Belgium) and Others (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Commission of the European Communities

Form of order sought

| — | declare that Article 13 of the General Provisions for implementing Article 45 of the Staff Regulations (GPI) is unlawful; |
| --- | --- |

—

declare that Article 13 of the General Provisions for implementing Article 45 of the Staff Regulations (GPI) is unlawful;

| — | annul the merit list and the list of officials promoted to grade A*13 in the 2005 promotion procedure, in so far as the applicants' names are not included; |
| --- | --- |

—

annul the merit list and the list of officials promoted to grade A*13 in the 2005 promotion procedure, in so far as the applicants' names are not included;

| — | annul the decisions to award transitional priority points to the applicants, in that these points are limited to one point per year of seniority in grade up to a maximum of 7 points without taking into account the real merits of the applicants; |
| --- | --- |

—

annul the decisions to award transitional priority points to the applicants, in that these points are limited to one point per year of seniority in grade up to a maximum of 7 points without taking into account the real merits of the applicants;

| — | annul the decisions to award to the applicants neither the priority points awarded by the Directors and Directors-General, nor the priority points awarded by the Promotion Committee, in particular in recognition of work undertaken in the interest of the institution in the 2003 and 2004 promotion procedures; |
| --- | --- |

—

annul the decisions to award to the applicants neither the priority points awarded by the Directors and Directors-General, nor the priority points awarded by the Promotion Committee, in particular in recognition of work undertaken in the interest of the institution in the 2003 and 2004 promotion procedures;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

In support of their application, the applicants submit that the contested decisions disregard the scope of Article 45 of the Staff Regulations, which imposes on the Appointing Authority the obligation to choose officials that are to be promoted essentially on the basis of a consideration of their comparative merits.

They also claim that Article 13 of the GPI, as interpreted and applied by the Commission, is unlawful, since it disregards the scope of the provision which it is supposed to implement as well as the general principle of equal treatment and non-discrimination.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/50 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/50

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Action brought on 29 September 2006 — Liotti v Commission

(Case F-114/06)

(2006/C 281/89)

Language of the case: French

Parties

Applicant: Amerigo Liotti (Senningerberg, Luxembourg) (represented by: F. Frabetti, lawyer)

Defendant: Commission of the European Communities

Form of order sought

| — | annul the list of officials promoted in the 2005 promotion procedure, in so far as that list does not include the applicant's name, and also, by way of an incidental measure, the preparatory measures for those decisions; |
| --- | --- |

—

annul the list of officials promoted in the 2005 promotion procedure, in so far as that list does not include the applicant's name, and also, by way of an incidental measure, the preparatory measures for those decisions;

| — | in the alternative, annul the allocation of promotion points in the abovementioned promotion procedure, in particular, following the recommendations of the Promotion Committees; |
| --- | --- |

—

in the alternative, annul the allocation of promotion points in the abovementioned promotion procedure, in particular, following the recommendations of the Promotion Committees;

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

—

order the defendant to pay the costs.

Pleas in law and main arguments

In support of his application, the applicant relies on the seven following pleas in law:

| — | first, infringement of Article 45 of the Staff Regulations; |
| --- | --- |

—

first, infringement of Article 45 of the Staff Regulations;

| — | second, infringement of the general implementing provisions for that article; |
| --- | --- |

—

second, infringement of the general implementing provisions for that article;

| — | third, infringement of the principle of non-discrimination, and a manifest error of assessment; |
| --- | --- |

—

third, infringement of the principle of non-discrimination, and a manifest error of assessment;

| — | fourth, infringement of the principles of prohibition of arbitrary procedures and of abuse of powers, and also infringement of the duty to state reasons; |
| --- | --- |

—

fourth, infringement of the principles of prohibition of arbitrary procedures and of abuse of powers, and also infringement of the duty to state reasons;

| — | fifth, infringement of the principle of protection of legitimate expectations, and of the rule ‘Patere legem quam ipse fecisti’ (obey the rules which you yourself have made); |
| --- | --- |

—

fifth, infringement of the principle of protection of legitimate expectations, and of the rule ‘Patere legem quam ipse fecisti’ (obey the rules which you yourself have made);

| — | seventh, infringement of the duty to have regard for the welfare of officials. |
| --- | --- |

—

seventh, infringement of the duty to have regard for the welfare of officials.

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| 18.11.2006 | EN | Official Journal of the European Union | C 281/50 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/50

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Order of the Civil Service Tribunal of 4 October 2006 — Grunheid v Commission

(Case F-35/06) (1)

(2006/C 281/90)

Language of the case: French

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

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(1)  OJ C 143, 17.06.2006.

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III Notices

| 18.11.2006 | EN | Official Journal of the European Union | C 281/51 |
| --- | --- | --- | --- |

18.11.2006

EN

Official Journal of the European Union

C 281/51

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(2006/C 281/91)

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

OJ C 261, 28.10.2006

Past publications

OJ C 249, 14.10.2006

OJ C 237, 30.9.2006

OJ C 224, 16.9.2006

OJ C 212, 2.9.2006

OJ C 190, 12.8.2006

OJ C 178, 29.7.2006

These texts are available on:

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

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

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