Case C-322/05 P: Appeal brought on 24 August 2005 by Hippocrate Vounakis against the order made on 2 June 2005 by the Court of First Instance of the European Communities (Third Chamber) in Case T-326/03: Hippocrate Vounakis v Commission of the European Communities
Date: 2005-10-15
Institutions: Court of Justice
Subjects: European Commission, European official, action by staff, appeal, promotion, staff assessment

C 257/6

EN

Official Journal of the European Union

15.10.2005

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

E. Marchal, lawyers, against the order made on 2 June 2005 by
the Court of First Instance of the European Communities (Third
Chamber) in Case T-326/03: Hippocrate Vounakis v Commis-
sion of the European Communities.

(Case C-321/05)

(2005/C 257/10)

(Language of the case: Danish)

The appellant claims that the Court should:

1. Annul

the order of

the Court of First

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

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

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

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

(Case C-322/05 P)

(2005/C 257/11)

(Language of the case: French)

An appeal was brought on 24 August 2005 before the Court
of
the European Communities by Hippocrate
Vounakis, represented by S. Orlandi, A. Coolen, J.-N. Louis and

Justice of

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

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

Pleas in law and main arguments:

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

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

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

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

15.10.2005

EN

Official Journal of the European Union

C 257/7

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

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

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

Denmark

(Case C-327/05)

(2005/C 257/12)

(Language of the case: Danish)

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

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

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

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

Pleas in law and main arguments

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

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

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

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

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