Case C-351/06: Action brought on 24 August 2006 — Commission of the European Communities v Federal Republic of Germany
Date: 2006-10-14
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, advertising, approximation of laws, national implementing measure, sponsorship, tobacco

C 249/6

EN

Official Journal of the European Union

14.10.2006

Pleas in law and main arguments

The appellant bases its appeal on a single plea, alleging infrin-
gement of Article 236 EC and of the conditions governing the
liability of the Commission. The appellant essentially claims
that the Court of First Instance wrongly interpreted the notion
of loss of an ‘opportunity’ to fill a post as being a notion
equivalent to the loss of a ‘guarantee’ to fill a post — thus
failing to have regard to the discretion traditionally accorded to
the Commission in recruitment — and, consequently, used an
erroneous method of calculation of the sum payable by the
Commission to compensate for the loss of an opportunity to
the
be recruited resulting from an unlawful decision of
Commission. Only actual and certain damage can give rise to
compensation. However,
in the present case, the only actual
and certain damage caused to the interested party is that which
results from the Commission's failure to consider her candida-
loss of
ture, and not that which results from a hypothetical
earnings.

Moreover, the Commission notes that the criterion of loss of
earnings used by the Court of First Instance to calculate the
damage to be compensated is itself uncertain because if the
interested party had, during the period in question,
taken
employment outside the Community Institutions which was
better paid than the post which she could have obtained in the
Commission, there would have been no loss of earnings to
compensate. The method used by the Court of First Instance
may therefore also lead to discrimination between candidates
for the same recruitment on the basis of whether or not they
occupy a post that is better paid than that to which they had
the opportunity of being recruited.

relating to the advertising and sponsorship of
tobacco
products (1) or by not informing the Commission of such
provisions, the Federal Republic of Germany has failed to
fulfil its obligations under Article 10 of that directive;

— order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the directive expired
on 31 July 2005.

(1) OJ 2003 L 152, p. 16

Action brought on 25 August 2006 — Commission of the
European Communities v Grand Duchy of Luxembourg

(Case C-354/06)

(2006/C 249/13)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: J. Hottiaux, F. Simonetti, acting as Agents)

Defendant: Grand Duchy of Luxembourg

Action brought on 24 August 2006 — Commission of the
European Communities v Federal Republic of Germany

Form of order sought

(Case C-351/06)

(2006/C 249/12)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by: L. Pignataro-Nolin and I. Kaufmann-Bühler, acting as
Agents)

Defendant: Federal Republic of Germany

Form of order sought

The Court is asked to:

By its action, the applicant claims that the Court should:

— declare that, by failing to adopt the laws, regulations or
administrative provisions necessary to comply with Direc-
tive 2003/35/EC of the European Parliament and of the
Council of 26 May 2003 providing for public participation
in respect of
the drawing up of certain plans and
programmes relating to the environment and amending
with regard to public participation and access to justice
Council Directives 85/337/EEC and 96/61/EC (1), and,
in
any event, by failing to notify such provisions to the
Commission, the Grand Duchy of Luxembourg has failed to
fulfil its obligations under that Directive;

— order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The period within which Directive 2003/35/EC had to be trans-
posed expired on 25 June 2005.

— declare that, by not adopting the laws, regulations and
administrative provisions necessary to transpose Directive
2003/33/EC of the European Parliament and of the Council
of 26 May 2003 on the approximation of the laws, regula-
tions and administrative provisions of the Member States

(1) OJ L 156. p. 17