Case C-320/05 P: Appeal brought on 22 August 2005 by Fred Olsen SA against the judgment delivered on 15 June 2005 by the Court of First Instance of the European Communities (Second Chamber, Extended composition) in Case T-17/02 between Fred Olsen SA and the Commission of the European Communities, supported by the Kingdom of Spain
Date: 2005-10-29
Institutions: Court of Justice
Subjects: General Court (EU), State aid, appeal, control of State aid, maritime transport, proof, rights of the defence, transport company

C 271/14

EN

Official Journal of the European Union

29.10.2005

Reference for a preliminary ruling from the Finanzgericht
Münster by order of
that court of 5 July 2005 in
Columbus Container Services B.V.B.A. & Co. v Finanzamt
Bielefeld-Innenstadt

(Case C-298/05)

(2005/C 271/25)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Finanzgericht Münster of 5
July 2005, received at the Court Registry on 26 July 2005, for
a preliminary ruling in the proceedings between Columbus
Container Services B.V.B.A. & Co. and Finanzamt Bielefeld-
Innenstadt on the following question:

Is it contrary to the provisions of Article 52 of the EC Treaty
(now Article 43 EC) and Article 73(b) to 73(d) of the EC Treaty
(now Articles 56 to 58 EC) for the legislation contained in
Paragraph 20(2) and (3) of
the Außensteuergesetz (Foreign
Transaction Tax Law, hereinafter: the ‘AStG’) as amended by
the Missbrauchsbekämpfungs- und Steuerbereinigungsgesetz
(Law combating abuse and streamlining taxation) of 21
December 1993 (BGBl 1993 I, p. 2310)
from
double taxation the designated passive income of a foreign
permanent establishment of a party with unlimited liability to
tax in Germany, which would be liable to tax as controlled-
foreign-corporation (CFC) income if the permanent establish-
ment were a foreign corporation, by offsetting the foreign tax
on earnings levied on the income rather than by exempting the
income from taxation in Germany contrary to the double taxa-
tion convention between the Federal Republic of Germany and
the Kingdom of Belgium of 11 April 1967?

to exempt

Reference for a preliminary ruling of 13 July 2005 from
the Arbitragehof (Belgium) in the proceedings between
Advocaten voor de wereld, a non-profit-making associa-
tion, and the Council of Ministers

(Case C-303/05)

(2005/C 271/26)

(Language of the case: Dutch)

arrest warrant and the surrender procedures between
Member States compatible with Article 34(2)(b) of
the
Treaty on European Union, under which framework deci-
sions may be adopted only for the purpose of approxima-
tion of the laws and regulations of the Member States?

2. Is Article 2(2) of Framework Decision 2002/584/JHA of the
Council of the European Union of 13 June 2002 on the
European arrest warrant and the surrender procedures
between Member States, in so far as it sets aside verification
of the requirement of double criminality for the offences
listed therein, compatible with Article 6(2) of the Treaty on
European Union and, more specifically, with the principle of
legality in criminal proceedings guaranteed by that provision
and with the principle of equality and non-discrimination?

(1) OJ 2002 L 190, p. 1.

Appeal brought on 22 August 2005 by Fred Olsen SA
against the judgment delivered on 15 June 2005 by the
Court of First Instance of the European Communities
(Second Chamber, Extended composition) in Case T-17/02
between Fred Olsen SA and the Commission of the Euro-
pean Communities, supported by the Kingdom of Spain

(Case C-320/05 P)

(2005/C 271/27)

(Language of the case: Spanish)

An appeal against the judgment delivered on 15 June 2005 by
the Second Chamber, (Extended Composition), of the Court of
First Instance of the European Communities, in Case T-17/02,
between Fred Olsen SA and the Commission of the European
Communities,
supported by the Kingdom of Spain, was
brought before the Court of Justice of the European Commu-
nities on 22 August 2005 by Fred Olsen SA, represented by R.
Marín Correa, lawyer.

The appellant claims that the Court of First Instance should:

(1) Annul

the contested judgment

for infringement of

appellant's right
defence, or

to adduce the evidence relevant

the
to its

Reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of the Arbitragehof (Court of
Arbitration) (Belgium) of 13 July 2005, received at the Court
Registry on 29 July 2005,
for a preliminary ruling in the
proceedings between Advocaten voor de wereld, a non-profit-
making association, and the Council of Ministers on the
following questions:

1. Is Framework Decision 2002/584/JHA (1) of the Council of
the European Union of 13 June 2002 on the European

(2) In the alternative, set aside the contested judgment and
adopt a fresh judgment annulling the Commission Decision
of 25 July 2001 (1) on procedure NN 48/2001 concerning
State aid,
indicated in the application
submitted by Fred Olsen SA.

in the terms

(3) Make such other order as it may deem fit, in particular an
order as to costs and the costs at first instance to be
imposed on the Commission of the European Commu-
nities.

29.10.2005

EN

Official Journal of the European Union

C 271/15

Pleas in law and main arguments

Action brought on 24 August 2005 by the Commission of
the European Communities against the United Kingdom

1. The first plea concerns the infringement of the defendant's
right to adduce evidence relevant to the defence, which is
subsumed within the right to a fair hearing enshrined in
Article 6 of the European Convention on Human Rights; it
also raises a plea concerning the legally erroneous appraisal
of the evidence actually adduced.

That right was alleged to have been infringed by the refusal
to allow various items of documentary evidence which were
essential for substantiating the action for annulment; the
defendant's essential pleas were not upheld precisely because
they were not supported or evidenced. Likewise, The Court
of First Instance is alleged to have distorted or disregarded
the clear sense of evidence essential for underpinning the
application for annulment.

the EC Treaty on the ground that

2. The second plea concerns the infringement of Article 253
of
the statement of
reasons on which the contested Decision was based was, in
regard to essential aspects, inadequate. In particular, in rela-
tion to the essential question raised in the complaints which
gave rise to the aforementioned decision concerning the
lack of any contractual basis for the payments made to
Transmediterránea in order to offset personnel restructuring
costs.

3. The third plea concerns the infringement of Article 88 EC
and Article 19 of Regulation No 659/1999. It is alleged that
the actual measures contained in the Commission Decision
of 3 December 1997 adopted in relation to the contract for
the provision of maritime services entered into between
Transmediterránea and the Kingdom of Spain in 1978
entailed the abolition of the State aid scheme contained
therein and precluded its continuance in relation to the
Canary Isles lines.

4. The fourth plea concerns the infringement of Article 86(2)
of the EC Treaty, in conjunction with the infringement of
Article 173 thereof, inasmuch as the Court of First Instance
exceeded its competences in determining the application for
review and confirming the validity of the contested decision
of its own motion as an appellate court. A plea is also
raised concerning the infringement of Article 263 of the
Treaty.

In fact, in the contested judgment the Court of First Instance
confirmed the validity of certain compensation for the
performance of public service obligations; in doing so, not
only did it disregard the terms of Article 86(2) of the Treaty
and the case-law interpreting that provision (since the
requirements contained in that provision governing the
validity of
it also
exceeded its competences in basing that determination on
justificatory grounds differing from those contained in the
Decision and which, as a result of
the allegations and
evidence put forward, have been shown to be fraught with
uncertainty.

the payments were not

fulfilled) but

(1) OJ 2002, C 96, p. 4

(Case C-323/05)

(2005/C 271/28)

(Language of the case: English)

An action against the United Kingdom was brought before the
Court of Justice of the European Communities on 24 August
2005 by the Commission of the European Communities, repre-
sented by Antonio Aresu and Nicola Yerrell, acting as Agents,
with an address for service in Luxembourg.

The Commission claims that the Court should:

1. find that

the United Kingdom has failed its obligations
under the EC Treaty by failing to adopt all the laws, regula-
tions and administrative provisions necessary to comply
with Directive 2001/95/EC of 3 December 2001 on general
product safety (1) and/or by failing to inform the Commis-
sion thereof;

2. condemn the United Kingdom to bear the costs of the

procedure.

Pleas in law and main arguments

The period within which the directive had to be transposed
expired on 15 January 2004.

(1) OJ L 11, 15.01.2002, p. 4

Appeal brought on 26 August 2005 by Industrias
Químicas del Vallés, SA against the judgment delivered on
28 June 2005 by the Second Chamber of the Court of First
Instance in Case T-158/03 between Industrias Químicas
the European
del Vallés, SA and the Commission of

Communities

(Case C-326/05 P)

(2005/C 271/29)

(Language of the case: Spanish)

An appeal against the judgment delivered on 28 June 2005 by
the Second Chamber of the Court of First Instance of the Euro-
pean Communities
in Case T-158/03 between Industrias
Químicas del Vallés, SA and the Commission of the European
Communtiies was brought before the Court of Justice of the
European Communities on 26 August 2005 by Industrias
Químicas del Vallés, SA, represented by C. Fernández Vicién, I.
Moreno-Tapia Rivas and J. Sabater Marotias, abogados.