Case C-308/04 P: Judgment of the Court (Second Chamber) of 29 June 2006 — SGL Carbon AG v Commission of the European Communities (Appeals — Competition — Agreements, decisions and concerted practices — Graphite electrodes — Article 81(1) EC — Fines — Guidelines on the method of setting fines — Leniency Notice — Principle of non bis in idem )
Date: 2006-09-02
Institutions: Court of Justice
Subjects: European Commission, Germany, action for annulment (EU), appeal, carbon, fine, restriction on competition, restrictive trade practice

2.9.2006

EN

Official Journal of the European Union

C 212/3

Parties to the main proceedings

Claimants: Konstantinos Adeneler, Pandora Kosa-Valdirka, Niko-
laos Markou, Agapi Pantelidou, Christina Topalidou, Apostolos
Alexopoulos, Konstantinos Vasiniotis, Vasiliki Karagianni,
Apostolos Tsitsionis, Aristidis Andreou, Evangelia Vasila,
Kalliopi Peristeri, Spiridon Sklivanitis, Dimosthenis Tselefis,
Theopisti Patsidou, Dimitrios Vogiatzis, Rousas Voskakis, Vasi-
lios Giatakis

Defendant: Ellinikos Organismos Galaktos (ELOG)

public sector alone, prohibits absolutely the conversion into an
indefinite duration of a succession of
employment contract of
fixed-term contracts that,
in fact, have been intended to cover
‘fixed and permanent needs’ of the employer and must therefore be
regarded as constituting an abuse.

4. Where a directive is transposed belatedly into a Member State's
domestic law and the relevant provisions of the directive do not
have direct effect,
the national courts are bound to interpret
domestic law so far as possible, once the period for transposition
has expired, in the light of the wording and the purpose of the
directive concerned with a view to achieving the results sought by
the directive,
the national rules
which is the most consistent with that purpose in order thereby to
achieve an outcome compatible with the provisions of the directive.

favouring the interpretation of

Re:

(1) OJ C 179, 10.07.2004.

Reference for a preliminary ruling — Monomeles Protodikio
Thessalonikis — Interpretation of clause 5(1) and (2) of the
annex to Council Directive 1999/70/EC of 28 June 1999
concerning the framework agreement on fixed-term work
concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43)
— Employment contracts concluded with the public authorities
— ‘Objective reasons’ justifying unlimited renewal of successive
fixed-term contracts — ‘Successive contracts’

Judgment of the Court (Second Chamber) of 29 June 2006
the European
— SGL Carbon AG v Commission of

Communities

Operative part of the judgment

(Case C-308/04 P) (1)

1. Clause 5(1)(a) of the framework agreement on fixed-term work
concluded on 18 March 1999, which is annexed to Council
Directive 1999/70/EC of 28 June 1999 concerning the frame-
work agreement on fixed-term work concluded by ETUC, UNICE
and CEEP, is to be interpreted as precluding the use of successive
fixed-term employment contracts where the justification advanced
for their use is solely that it is provided for by a general provision
of statute or secondary legislation of a Member State. On the
contrary, the concept of ‘objective reasons’ within the meaning of
that clause requires recourse to this particular type of employment
relationship, as provided for by national legislation, to be justified
by the presence of specific factors relating in particular to the
activity in question and the conditions under which it is carried
out.

2. Clause 5 of the framework agreement on fixed-term work is to be
interpreted as precluding a national rule, such as that at issue in
the main proceedings, under which only fixed-term employment
contracts or relationships that are not separated from one another
by a period of
time longer than 20 working days are to be
regarded as ‘successive’ within the meaning of that clause.

3. In circumstances such as those of the main proceedings, the frame-
to be interpreted as
work agreement on fixed-term work is
meaning that,
in so far as domestic law of the Member State
concerned does not include, in the sector under consideration, any
other effective measure to prevent and, where relevant, punish the
misuse of successive fixed-term contracts, that framework agree-
ment precludes the application of national legislation which, in the

(Appeals — Competition — Agreements, decisions and
concerted practices — Graphite electrodes — Article 81(1)
EC — Fines — Guidelines on the method of setting fines —
Leniency Notice — Principle of non bis in idem)

(2006/C 212/05)

Language of the case: German

Parties

Appellant: SGL Carbon AG (represented by M. Klusmann and K.
Beckmann, lawyers)

Other parties to the proceedings: Commission of the European
Communities, (represented by A. Bouquet, H. Gading and M.
Schneider, Agents), Tokai Carbon Co. Ltd, established in Tokyo
(Japan), Nippon Carbon Co. Ltd, established in Tokyo, Showa
Denko KK, established in Tokyo, GrafTech International Ltd,
formerly UCAR International Inc., established in Wilmington
(United States), SEC Corp., established in Amagasaki (Japan),
The Carbide/Graphite Group Inc., established in Pittsburgh
(United States)

C 212/4

EN

Official Journal of the European Union

2.9.2006

Re:

Appeal brought against the judgment of the Court of First
Instance (Second Chamber) of 29 April 2004 in Joined Cases
T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-
252/01 Tokai Carbon and Others as regards Case T-239/01 —
Annulment of Commission Decision 2002/271/EC of 18 July
2001 relating to a proceeding under Article 81 EC and Article
53 of
the EEA Agreement — Case COMP/E-1/36.490 —
Graphite electrodes (OJ 2002 L 100, p. 1)

Operative part of the judgment

The Court:

1. Dismisses the appeal;

2. Orders SGL Carbon AG to pay the costs.

(1) OJ C 262, 23.10.2004.

Judgment of the Court (Second Chamber) of 15 June 2006
(references for a preliminary ruling from the Cour d'appel
de Liège (Court of Appeal, Liège ), Tribunal de première
instance de Liège (Court of First Instance, Liège) — Air
Liquide Industries Belgium SA v Ville de Seraing (C-393/
04) and Province de Liège (C-41/05)

(Joined Cases C-393/04 and C-41/05) (1)

(State aid — Definition — Exemption from municipal and
provincial taxes — Effects of Article 88(3) EC — Charges
having equivalent effect — Internal taxation)

(2006/C 212/06)

Language of the cases: French

Referring courts

Cour d'appel de Liège, Tribunal de première instance de Liège

solely for motors used for the distribution of natural gas, to the
exclusion of motors used in the distribution of industrial gas

Operative part of the judgment

1. The exemption from a municipal or provincial tax on motive force
granted solely in respect of motors used in natural gas stations, to
the exclusion of motors used for other industrial gases, may be
regarded as State aid within the meaning of Article 87 EC. It is
for the referring courts to establish whether the conditions relating
to the existence of State aid are met.

2. The fact that a tax exemption, such as that at issue in the main
proceedings, may be unlawful in the light of Community law on
State aid does not affect the legality of the tax itself, so that under-
takings liable to pay such a tax cannot rely before national courts
on the argument that the exemption was unlawful, in order to
avoid payment of the tax or to obtain reimbursement of it.

3. A tax on motive force,

levied in particular on motors used for
transporting industrial gas through very high pressure pipes, does
not
effect within the
meaning of Article 25 EC.

constitute a charge having equivalent

4. A tax on motive force,

levied in particular on motors used for
transporting industrial gas through very high pressure pipes, does
not constitute discriminatory internal taxation for the purposes of
Article 90 EC.

(1) OJ C 273, 06.11.2004.
OJ C 93, 16.04.2005.

Judgment of the Court (Third Chamber) of 6 July 2006
(reference for a preliminary ruling from the Cour de cassa-
tion — Belgium) — Axel Kittel v Belgian State

(Joined Cases C-439/04 and C-440/04) (1)

(Sixth VAT Directive — Deduction of input tax — ‘Carousel’
fraud — Contract of sale incurably void under domestic law)

(2006/C 212/07)

Language of the case: French

Parties to the main proceedings

Applicant: Air Liquide Industries Belgium SA

Defendants: Ville de Seraing (C-393/04), Province de Liège (C-
41/05)

Referring court

Cour de cassation

Re:

Parties to the main proceedings

References for a preliminary ruling — Cour d'appel de Liège,
Tribunal de première instance de Liège — Interpretation of
Articles 25 EC, 87 EC and 90 EC — State aid — Exemption
from a municipal tax and a provincial tax on motive force

Applicants: Axel Kittel (C-439/04) Belgian State (C-440/04)

Defendants: Belgian State (C-439/04) Recolta Recycling SPRL (C-
440-04)