Case C-328/05 P: Appeal brought on 30 August 2005 by SGL Carbon AG against the judgment of the Court of First Instance of the European Communities (Second Chamber) of 15 June 2005 in Joined Cases T-71/03,T-74/03, T-87/03 and T-91/03 Tokai and Others v Commission of the European Communities, in respect of Case T-91/03
Date: 2005-11-12
Institutions: Court of Justice
Subjects: General Court (EU), appeal, carbon, chemical industry, fine, unlawful agreement

12.11.2005

EN

Official Journal of the European Union

C 281/7

joined parties:

and Gemeinsamer Bundesausschuss;
(1) AOK-
Bundesverband KdöR, (2) IKK-Bundesverband, (3) Bundesver-
band der Betriebskrankenkassen, (4) Bundesverband der land-
wirtschaftlichen Krankenkassen, (5) Verband der Angestellten-
Krankenkassen e.V., (6) AEV — Arbeiter-Ersatzkassen-Verband
e.V.
(9) Federal
Republic of Germany, represented by the Federal Ministry of
Health and Social Security, on the following questions:

(7) Bundesknappschaft,

(8) Seekrankenkasse,

1. Is Council Directive 89/105/EEC (1) of 21 December 1988
relating to the transparency of measures regulating the
prices of medicinal products for human use and their inclu-
sion in the scope of national health insurance systems ('the
transparency directive') to be interpreted as precluding rules
of a Member State which, following the exclusion of non-
prescription medicinal products from the range of benefits
provided by the national health system, empower an
authority under that system to adopt rules derogating from
that exclusion in respect of certain medicines without
making provision for a procedure under Article 6(1), second
sentence, and 6(2) of the transparency directive?

2. Is Directive 89/105/EEC of 21 December 1988 to be inter-
preted as granting the manufacturers of
the medicinal
products referred to in point 1 above a subjective right vis-
à-vis the public authorities, in particular a right to a deci-
sion, containing a statement of reasons and information as
to the available avenues of appeal, on the inclusion of one
of their medicinal products on a list of the type mentioned
above, even though the rules of the Member State make no
provision for any corresponding decision-making or appeal
procedures?

(1) OJ 1989 L 40, p. 8.

Reference for a preliminary ruling from the Verwaltungs-
gericht Darmstadt by order of that court of 17 August
2005 in Ismail Derin v Landkreis Darmstadt-Dieburg

(Case C-325/05)

(2005/C 281/13)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Verwaltungsgericht Darm-
stadt of 17 August 2005, received at the Court Registry on 26
for a preliminary ruling in the proceedings
August 2005,

between Ismail Derin and Landkreis Darmstadt-Dieburg on the
following questions:

1. Does a Turkish national who, as a child, joined his parents
who were employed as workers in the Federal Republic of
Germany, and lived with them as a family, lose his right of
residence derived from the right under the second indent of
the first paragraph 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 — apart from in cases
under Article 14 of Decision No 1/80 or where he leaves
legitimate reason for a
the host Member State without
significant period of time — also where he has attained the
age of 21 and no longer lives with or is maintained by his
parents?

If the answer to the first question is in the affirmative:

2 Notwithstanding the loss of his legal status under the
second indent of the first paragraph of Article 7 of Decision
No 1/80, does that Turkish national enjoy special protection
against expulsion under Article 14 of Decision No 1/80
where, after having ceased to live with his parents as a
family, he was employed from time to time but has not
the legal status conferred by
acquired in his own right
Article 6(1) of Decision No 1/80 by virtue of being a
worker and for a number of years has worked exclusively
on a self-employed basis?

Appeal brought on 30 August 2005 by SGL Carbon AG
against the judgment of the Court of First Instance of the
European Communities (Second Chamber) of 15 June
2005 in Joined Cases T-71/03,T-74/03, T-87/03 and T-91/03
Tokai and Others v Commission of the European Commu-
nities, in respect of Case T-91/03

(Case C-328/05 P)

(2005/C 281/14)

(Language of the case: German)

On 30 August 2005, SGL Carbon AG, represented by Martin
Klusmann and Frederik Wiemer, of Freshfields Bruckhaus
Deringer, Feldmühleplatz 1, D-40008 Düsseldorf, brought an
appeal before the Court of Justice of the European Commu-
nities against the judgment of the Court of First Instance of the
European Communities (Second Chamber) of 15 June 2005 in
Joined Cases T-71/03, T-74/03, T-87/03 and T-91/03 Tokai and
Others v Commission of the European Communities, in respect of
Case T-91/03.

C 281/8

EN

Official Journal of the European Union

12.11.2005

The appellant claims that the Court should:

— whilst upholding the submissions made at first instance,
partially set aside the judgment of
the Court of First
Instance of the European Communities of 15 June 2005 in
Joined Cases T-71/03, T-74/03, T-87/03 and T-91/03, (1) in
so far as it dismissed the action in Case T-91/03 brought
against the Commission's decision C(2002) 5083 final, of
17 December 2002 relating to a proceeding under Article
81 EC;

— in the alternative, reduce the fine imposed on the appellant
in Article 3 of the decision of 17 December 2002 and
further reduce the amount of the interest payable pending
judgment and the default interest laid down in the operative
part of the judgment under appeal, as appropriate;

— order the respondent to pay the entire costs of the proceed-

ings.

Grounds of appeal and main arguments

The appellant reasons its appeal against the abovementioned
judgment of the Court of First Instance by alleging erroneous
application of procedural rules and infringement of Community
law:

1. It is claimed that, according to the fundamental principle
non bis in idem — generally applicable in the laws of the
Member States and the Community and also in relation to
non-member countries — in the present case, the earlier
fine imposed on the appellant in the United States should
have been taken into account. The absolute refusal to take
account of the previous fines imposed abroad — in infringe-
ment of that principle and thus, also of the principle of
material justice — is unlawful and does not fall within the
discretion of the authority which made the decision or that
of the Court of First Instance.

2. No justification was given for increasing the amount of the
fine by 35 % as a result of the allegation that the appellant
was the sole ringleader, since the indisputable facts and the
Court of First Instance's own contradictory findings do not
provide a basis for so doing. Since it was not apparent from
the Commission's points of complaint that it was intending
to consider the appellant as the sole ringleader, the right to
a fair hearing was also thereby infringed.

3. The Court of First Instance did not clarify the appellant's
objection according to which its rights of defence were irre-
parably infringed by the inadequate language knowledge of
the members of the Commission's team working on the
case, and this in spite of
the appellant's substantiated
submissions and offers to produce evidence.

4. The cooperation provided by the appellant was undervalued.
Given that the cooperation which it provided was worth at
least as much as that of the other participants it was — by
reason of the significantly smaller reduction of its fine in
comparison with those of the other participants — the
victim of discrimination.

5. The fines imposed were disproportionally high since the fact
that the appellant was going through a difficult period at
the time of the decision was not taken into account. The
Instance could not
Commission and the Court of First
presume that economic efficiency is generally not to be
taken into account when determining the amount of a fine:
they must both check whether the fine imposed is econom-
ically viable.

6. Finally, the determination of the interest rate was also erro-
neous: the particularly high interest during the proceedings
amounts specifically to an additional fine, for which there is
no legal basis.

(1) OJ 2005 C 205 of 20 August 2005.

Reference for a preliminary ruling from the Bundessozial-
gericht by order of that court of 5 July 2005 in Aldo
Celozzi v Innungskrankenkasse Baden-Württemberg

(Case C-332/05)

(2005/C 281/15)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Bundessozialgericht of 5
July 2005, received at the Court Registry on 12 September
2005, for a preliminary ruling in the proceedings between
Aldo Celozzi and Innungskrankenkasse Baden-Württemberg on
the following question:

Is it compatible with the primary and/or secondary law of the
European Community (in particular Article 39 EC (formerly
Article 48 of the EC Treaty), Articles 3(1) and 23(3) of Regu-
lation (EEC) No 1408/71, and Article 7(2) of Regulation (EEC)
No 1612/68) (1) for a married migrant worker employed in
Germany, whose spouse resides in another Member State, to
receive sick pay always linked to net remuneration established
on the basis of the wage tax class stated on his wage tax card
without account being taken of a subsequent
retroactive
amendment, which is favourable to him, of the tax classifica-
tion relating to his marital status?

(1) OJ L 257 p. 2.