Case C-344/05 P: Appeal brought on 21 September 2005 by the Commission of the European Communities against the judgment delivered on 12 July 2005 by the Court of First Instance of the European Communities (single judge) in Case T-157/04 Joël de Bry v Commission of the European Communities
Date: 2005-11-12
Institutions: Court of Justice
Subjects: European Commission, European official, General Court (EU), appeal, regulations for civil servants, staff assessment

12.11.2005

EN

Official Journal of the European Union

C 281/11

Pleas in law and main arguments

the Republic of Finland has failed to fulfil
under the EC Treaty and Directive 2001/37/EC;

its obligations

Article 16 of Directive 92/43/EEC is an exception to the
system of the strict protection of species in Article 12, so that
it must be interpreted strictly. Article 12(1)
lays down two
preconditions for derogating on the basis of points (a) to (e).
First, the derogation must not be detrimental to the mainte-
nance of the populations of the species concerned at a favour-
able conservation status in their natural range. Second, a dero-
gation is possible only where there is no other satisfactory solu-
tion.

Since the level of protection of the wolf is not favourable in
Finland and other alternative methods are available, and since
permits for hunting wolves are regularly issued without there
being a properly ascertained connection with individuals
causing particularly significant damage, the hunting of wolves
is permitted in Finland to an extent which exceeds the condi-
tions laid down in Article 16(1) of Directive 92/43/EEC.

(1) OJ L 206 of 22.7.1992, p. 7.

2. order the Republic of Finland to pay the costs.

Pleas in law and main arguments

The list in Annex II to Directive 2001/37/EC mentions Direc-
tive 92/41/EEC and the time-limit for transposing its provisions
In the case of
legislation was 1 July 1992.
into national
Finland,
for transposing the provisions into
national legislation based on Finland's accession was 1 January
1995, even though it must be stated that compliance with the
directive was already mandatory for Finland from 1 January
1994 under the Agreement on the European Economic Area.

the time-limit

(1) Directive 2001/37/EC of

the European Parliament and of

the
Council of 5 June 2001 on the approximation of the laws, regula-
States
tions
concerning the manufacture, presentation and sale of
tobacco
products, OJ L 194 of 18.7.2001, p. 26.

and administrative provisions of

the Member

Action brought on 19 September 2005 by the Commission
of the European Communities against the Republic of
Finland

(Case C-343/05)

(2005/C 281/20)

(Language of the case: Finnish)

Appeal brought on 21 September 2005 by the Commis-
sion of the European Communities against the judgment
delivered on 12 July 2005 by the Court of First Instance
of the European Communities (single judge) in Case T-157/
04 Joël de Bry v Commission of the European Communities

(Case C-344/05 P)

(2005/C 281/21)

(Language of the case: French)

Justice of

An action against the Republic of Finland was brought before
the Court of
the European Communities on 19
September 2005 by the Commission of the European Commu-
nities, represented by L. Pignataro Nolin and M. Huttunen,
acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

1. declare that:

Instance of

An appeal against the judgment delivered on 12 July 2005 by
the Court of First
the European Communities
(single judge) in Case T-157/04 Joël de Bry v Commission of the
European Communities was brought before the Court of Justice
of the European Communities on 21 September 2005 by the
Commission of
the European Communities, represented by
Lidia Lozano Palacios and Hannes Kraemer, acting as Agents.

by not ensuring that Ahvenanmaa (Åland) has transposed
into its legislation Article 8a of Directive 89/622/EEC,
which was added by Directive 92/41/EC and is contained in
Article 8 of Directive 2001/37/EC, (1) and

The appellant claims that the Court should:

— set aside the judgment under appeal

by not enduring that the prohibition in the abovementioned
Community provisions of marketing nuuska (oral tobacco)
is complied with on vessels registered in Finland,

— pass final

judgment on the dispute, allowing the claims
submitted by the defendant at first instance and, conse-
quently, dismissing the application in Case T-157/04;

C 281/12

EN

Official Journal of the European Union

12.11.2005

— in the alternative, refer the case back to the Court of First

2. order the Portuguese Republic to pay the costs.

Instance;

— order the applicant at first instance to pay the costs of the
including its own costs in the proceedings

proceedings,
before the Court of First Instance.

Pleas in law and main arguments:

The Commission relies on a single plea against the judgment
under appeal, alleging a breach of Community law in para-
graphs 79 to 91 of that judgment. It submits that the Court of
First Instance erred in holding, essentially, that the procedure
resulting in the drawing up of a staff report containing unfa-
vourable value judgments about the official being assessed is
vitiated by a breach of this official's right to a fair hearing,
where the assessors failed to record the factual basis of those
value judgments, in the form of a written warning, in a ‘docu-
ment’ within the meaning of the first and second paragraphs of
Article 26 of the Staff Regulations, and that there was also a
failure to add such documents to the personal file of the official
concerned within a reasonable time of the conduct alleged or,
at the very least, to bring them to the official's knowledge.

Action brought on 21 September 2005 by the Commission
the Portuguese
of

the European Communities against

Republic

(Case C-345/05)

(2005/C 281/22)

(Language of the case: Portuguese)

Justice of

An action against the Portuguese Republic was brought before
the Court of
the European Communities on 21
September 2005 by the Commission of the European Commu-
nities, represented by R. Lyal and M. Afonso, acting as Agents,
with an address for service in Luxembourg.

The Commission claims that the Court should:

1. declare that, by having maintained in force fiscal provisions
making entitlement to exemption from tax on capital gains
arising from the transfer for valuable consideration of real
property intended for the taxable person's own and perma-
nent residence or for that of a member of his family subject,
as provided for by Article 10(5) of the Personal Income Tax
Code, to the condition, laid down in subparagraph (a) of
that provision, that the gains realised should be reinvested
in the purchase of property situated in Portuguese territory,
the Portuguese Republic has failed to fulfil its obligations
under Articles 18, 39, 43 and 56(1) EC, and under Articles
28, 31 and 40 of the Agreement on the European Economic
Area;

Pleas in law and main arguments

The condition requiring the reinvestment of gains realised on
the sale of real property used for the personal and permanent
residence of a taxable person or for that of a member of his
family in the purchase of other real property in Portuguese
territory clearly constitutes an impediment to the fundamental
freedoms guaranteed by the EC Treaty and the EEA Agreement.

The explanations and justifications for that condition presented
by the Portuguese Republic do not merit consideration.

Action brought on 22 September 2005 by the Commission
of the European Communities against the Republic of
Estonia

(Case C-351/05)

(2005/C 281/23)

(Language of the case: Estonian)

Justice of

An action against the Republic of Estonia was brought before
the Court of
the European Communities on 22
September 2005 by the Commission of the European Commu-
nities, represented by B. Schima and E. Randvere, acting as
Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

— declare that, by failing to comply with the obligation under
Directive 2003/55/EC of the European Parliament and of
the Council of 26 June 2003 (1) concerning common rules
for the internal market in natural gas and repealing Direc-
tive 98/30/EC to notify all the laws, regulations and admin-
istrative provisions necessary to transpose that directive
into national law, and by notifying only in part the laws,
regulations and administrative provisions necessary to
transpose it into national law, the Republic of Estonia has
failed to fulfil its obligations under the directive;

— order the Republic of Estonia to pay the costs.

Pleas in law and main arguments

The prescribed period for transposition of the directive expired
on 1 July 2004.

(1) OJ L 176 of 15.7.2003, p. 57.