Case C-59/06 P: Appeal brought on  3 February 2006  by Luigi Marcuccio against the judgment delivered on  24 November 2005  by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-236/02 Luigi Marcuccio v Commission of the European Communities
Date: 2006-04-22
Institutions: Court of Justice
Subjects: European official, action for annulment (EU), administrator, indemnification

C 96/4

EN

Official Journal of the European Union

22.4.2006

(c) If Question 3(b)

is to be answered either entirely or

partially in the negative:

May the costs alternatively be proven by a valuation
made on the basis of an analytical cost model?

Which methodological and other substantive require-
ments do those alternative methods of valuation have to
satisfy?

Appeal brought on 3 February 2006 by Luigi Marcuccio
against the judgment delivered on 24 November 2005 by
the Fifth Chamber of the Court of First Instance of the
European Communities in Case T-236/02 Luigi Marcuccio
v Commission of the European Communities

(Case C-59/06 P)

(2006/C 96/06)

(Language of the case: Italian)

(d) Is the national regulatory authority entitled, when asses-
its authority
sing cost-orientation in the context of
under Article 4(1)
to (3) of Regulation (EC) No
2887/2000, to a so-called scope for evaluation which is
subject only to limited judicial control?

An appeal against the judgment of the Court of First Instance
(Fifth Chamber) of 24 November 2005 in Case T-236/02 Luigi
Marcuccio v Commission of the European Communities was
brought before the Court of Justice of the European Commu-
nities on 3 February 2006 by Luigi Marcuccio, represented by
L. Garofolo, avvocato.

(e) If Question 3(d) is to be answered in the affirmative:

Parties

Is that scope also applicable, in particular, to methods
of cost calculation and questions of determining the
appropriate amount of imputed interest (for borrowed
and/or own capital)
and appropriate depreciation
periods?

Appellant: Luigi Marcuccio (represented by: L. Garofolo)

The other party to the proceedings before the Court of First
Instance: Commission

Where do the boundaries of that scope lie?

The appellant claims that the Court should:

(f) Do the cost-orientation requirements at least serve to
protect the rights of competitors as beneficiaries, with
the consequence that those competitors can make use of
legal protection against rates for access which are not
set on the basis of cost-orientation?

(g) Does the notified operator bear the burden of unprova-
bility (burden of proof) if, in the supervisory procedure
under Article 4 of Regulation (EC) No 2887/2000 or in
the subsequent judicial proceedings, costs are totally or
partially unverifiable?

(h) If Questions 3(f) and 3(g) are to be answered in the affir-

mative:

Is the burden of proof for the cost-orientation also on
the notified operator if a beneficiary competitor brings
an action against
rates approved by a regulatory
authority under national law on the ground that, since
they were not set on the basis of cost-orientation, the
approved rates for access are too high?

(1) OJ 2000 L 336, p. 4.

— set aside the judgment under appeal and grant the other

forms of order sought by the appellant.

Pleas in law and main arguments

The appellant claims that the judgment of the Court of First
Instance is flawed by reason of:

1. distortion and misrepresentation of the facts and the state-
ments made by the appellant in his written submissions
which, in turn, led to substantial inaccuracy in the findings
of fact made by the Court of First Instance;

2. failure to give a ruling on a number of fundamental issues

in the case;

3. procedural errors of a serious nature such as to damage

irreparably the interests of the appellant;

4. total failure to state grounds concerning a number of vital
issues in the case by reason, inter alia, of a failure to make
inquiries and the fact that the reasons supposedly put
forward by way of justification were confused, inconsis-
tent, inadequate, unreasonable, tautologous, arbitrary, self-
evident
regards both primary and
secondary grounds;

and illogical

as

5. misinterpretation and misapplication of the second para-
graph of Article 26 of the Staff Regulations of Officials of
the European Communities;

6. misinterpretation and misapplication of the concept of the
to a fair hearing and unconsidered and illogical

right
failure properly to apply the relevant case-law;

22.4.2006

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Official Journal of the European Union

C 96/5

7. misinterpretation and misapplication of

the concept of
statement of reasons and unconsidered and illogical failure
properly to apply the relevant case-law;

Reference for a preliminary ruling from the Finanzgericht
Köln by order of that court of 19 January 2006 in Planzer
Luxembourg Sàrl v Bundeszentralamt für Steuern

8. misinterpretation and misapplication of the concept that a

statement of reasons should be consistent;

9. misinterpretation and misapplication of the concept that a

preparatory measure cannot be challenged;

10. misinterpretation and misapplication of the concept of an

opinion;

11. misinterpretation and misapplication of the concept that a

decision that has been issued cannot be amended.

(Case C-73/06)

(2006/C 96/08)

(Language of the case: German)

Action brought on 6 February 2006 by the Commission of
the European Communities against the Hellenic Republic

(Case C-67/06)

(2006/C 96/07)

(Language of the case: Greek)

An action against the Hellenic Republic was brought before the
Court of Justice of the European Communities on 6 February
2006 by the Commission of the European Communities, repre-
sented by Minas Konstantinidis and Amparo Alcover San
its Legal Service, with an address for service in
Pedro, of
Luxembourg.

The Commission claims that the Court should:

— declare that, by not adopting, and in any event by not noti-
fying to the Commission, the laws, regulations and adminis-
trative provisions necessary to comply with Directive
2002/49/EC (1) of
the
Council of 25 June 2002 relating to the assessment and
management of environmental noise, the Hellenic Republic
has failed to fulfil its obligations under that directive;

the European Parliament and of

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The time-limit for transposition of the directive into domestic
law expired on 18 July 2004.

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Finanzgericht Köln of 19
January 2006, received at the Court Registry on 8 February
2006, for a preliminary ruling in the proceedings between
Planzer Luxembourg Sàrl and Bundeszentralamt für Steuern on
the following questions:

1. Does an undertaking's certificate according to the specimen
form in Annex B to the Eighth Council Directive
79/1072/EEC of 6 December 1979 on the harmonisation of
the laws of the Member States relating to turnover taxes —
Arrangements for the refund of value added tax to taxable
persons not established in the territory of the country (1)
have binding effect or create an irrefutable assumption that
the undertaking is established in the State issuing the certifi-
cate?

2. If the first question should be answered in the negative:

Should the term 'business' in Article 1(1) of the Thirteenth
Directive be construed as meaning the place where the
company has its registered office

or should it mean the place where management decisions
are taken

or is the crucial factor the place where decisions vital to
normal everyday operations are taken?

(1) OJ No L 189, 18.7.2002, p. 12.

(1) OJ L 331, p. 11