Case C-12/05 P: Appeal brought on 18 January 2005 by H. Meister against the judgment delivered on 28 October 2004 by the Court of First Instance of the European Communities (Third Chamber) in Case T-76/03 between H. Meister and Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
Date: 2005-04-16
Institutions: Court of Justice
Subjects: European Union Intellectual Property Office, European official, General Court (EU), action for annulment (EU), appeal, reassignment

C 93/4

EN

Official Journal of the European Union

16.4.2005

ORDER OF THE COURT

(Fifth Chamber)

of 16 December 2004

in Case C-222/03 P Associazione Produttori Olivicoli
Laziali (APOL) Associazione Italiana Produttori Olivicoli
(AIPO) v Commission of the European Communities (1)

Appeal brought on 18 January 2005 by H. Meister against
the judgment delivered on 28 October 2004 by the Court
of First Instance of the European Communities (Third
Chamber) in Case T-76/03 between H. Meister and Office
for Harmonisation in the Internal Market (Trade Marks and
Designs) (OHIM)

(Case C-12/05 P)

(2005/C 93/08)

(Language of the case: French)

(Appeal — EAGGF — Improvement of the conditions under
which agricultural products are processed and marketed —
Plan to build a centre for the storage, packaging and
marketing of olive oil — Principle of proportionality — Force
majeure — Rights of the defence)

An appeal against the judgment delivered on 28 October 2004
by the Court of First Instance of the European Communities
(Third Chamber) in Case T-76/03 between H. Meister and Office
for Harmonisation in the Internal Market (Trade Marks and Designs)
(OHIM) was brought before the Court of Justice of the Euro-
pean Communities on 18 January 2005 by H. Meister, repre-
sented by P. Goergen, avocat.

(2005/C 93/07)

The appellant claims that the Court should:

(Language of the case: Italian)

(APOL), Associazione

In Case C-222/03 P: appeal under Article 56 of the Statute of
the Court of Justice, brought on 21 May 2003, Associazione
Produttori Olivicoli Laziali
Italiana
Produttori Olivicoli (AIPO), (lawyers: E. Cappelli, P. De Caterini
and A. Bandini), the other party to the proceedings being:
Commission of the European Communities (Agents: L. Visaggio
and C. Cattabriga, assisted by M. Moretto, lawyer) – the Court
(Fifth Chamber), composed of R. Silva de Lapuerta, President of
the Chamber, C. Gulmann and J. Klučka (Rapporteur), Judges;
D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar,
made an order on 16 December 2004, the operative part of
which is as follows

1. The appeal is dismissed.

2. Associazione Produttori Olivicoli Laziali and Associazione Italiana

Produttori Olivicoli shall pay the costs of this appeal.

(1) OJ C 171 of 19.07.2003

1. declare the appeal admissible and well founded;

2. accordingly, set aside the judgment of the Court of First
Instance (Third Chamber) of 28 October 2004 (Case T-76/
03), with the exception of paragraphs 202 to 208 of the
contested judgment, namely the provisions stating that the
President of OHIM committed a breach of his administrative
duty such as to give rise to a right to reparation;

3. give final judgment on the dispute, if it does not remit the
case to the Court of First Instance, and grant the forms of
order sought at first instance;

4. order OHIM to pay all the costs of the proceedings before

both courts.

Pleas on appeal and main arguments:

The Court of First Instance, first, gave its reasoning in an erro-
neous, inadequate and contradictory manner and, second, made
errors in law.

First of all, the defects in the Court's reasoning amount to a
clear distortion of the facts. The Court's selection of the matters
of fact was arbitrary and its assessment of them inaccurate.
Secondly, those defects are the result of an incorrect legal quali-
fication of the contested decision, in particular the refusal to
classify it as a disciplinary measure. The Court made a further
error in its reasoning in finding that the administration had a
broad discretion when evaluating the interest of the service,
which renders ineffective the duty to have regard to the welfare
of officials, and in stating that judicial review concerning obser-
vance of the condition relating to the interest of the service is
limited to the question as to whether or not the appointing

16.4.2005

EN

Official Journal of the European Union

C 93/5

the

that

in deciding

authority used its discretionary powers in a clearly erroneous
manner. The Court also carried out an inaccurate assessment of
the interest of the service and failed to take the welfare of offi-
cials into account. The Court also misapplied the principle of
proportionality
contested decision
complied with the principle, although the decision was neither
an appropriate measure, nor the least restrictive one. The Court
made a further error in assessing the equivalence or compar-
ability of the new position with the former post. In fact, if the
Court's reasoning were accepted, every transfer related to the
current grade would comply with the principle of assignment
to an equivalent post. Finally, the Court failed to indicate which
elements it took into account when it assessed the non-material
damage suffered by the appellant.

The Court also made a number of errors in law. First of all, it
exempted the transfer decision from the duty to state reasons
in considering it a mere measure of internal organisation, even
though that duty has been held to constitute a general principle
of law. Secondly, the Court made an error of law in finding
there to be no infringement of the right to a fair hearing to the
detriment of the appellant. The Court also made an error of
law in failing to make a clear statement on the scope of the
right to freedom of expression, on which the appellant should
have been able to rely in this instance. Finally, the Court made
an error of law concerning the application of the rights of
defence, in particular the right to be heard before the transfer
decision was made.

1. Does the exemption under Article 13B(c) of Sixth Council
Directive 77/388/EEC (1) of 17 May 1977 refer to input
VAT paid on the acquisition of goods or services used for
exempted activities or rather to cases in which a taxable
person who has acquired goods intended for such activities
subsequently sells those goods to other taxable persons?

2. Is that provision sufficiently precise and unconditional to be

directly effective in the national legal system?

3. For the purposes of the direct applicability of the directive,
what is the effect of the requirement in the first paragraph
of Article 13B whereby,
in implementing Article 13B(c),
Member States are to lay down conditions for 'preventing
any possible evasion, avoidance or abuse?

(1) OJ 1977 L 145 of 13.06.1977, p. 1.

Action brought on 20 January 2005 by the Commission of
the Kingdom of
the European Communities against

Denmark

(Case C-19/05)

(2005/C 93/10)

Reference for a preliminary ruling from the Commissione
Tributaria Provinciale di Napoli by order of that court of
15 July 2004 in Salus S.p.A v Agenzia Entrate Ufficio
Napoli 4

(Language of the case: Danish)

(Case C-18/05)

(2005/C 93/09)

An action against
the Kingdom of Denmark was brought
before the Court of Justice of the European Communities on
20 January 2005 (fax 14.01.) by the Commission of the Euro-
pean Communities, represented by N. B. Rasmussen and G.
Wilms, with an address for service in Luxembourg.

(Language of the case: Italian)

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

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Commissione Tributaria
Provinciale di Napoli (Italy) of 15 July 2004, received at the
Court Registry on 20 January 2005, for a preliminary ruling in
the proceedings between Salus S.p.A and Agenzia Entrate
Ufficio Napoli 4 on the following questions:

— declare that, by failing to pay the Commission the sum of
DKK 18 687 475 as own resources, together with default
interest from 27 July 2000, the Kingdom of Denmark has
failed to fulfil its obligations under Community law, in par-
ticular Article 10 EC and Articles 2 and 8 of Council Deci-
sion 94/728/EC, Euratom (1) of 31 October 1994 on the
system of the European Communities' own resources;

— order the Kingdom of Denmark to pay the costs.