Case C-47/07 P: Appeal brought on 2 February 2007 by Masdar (UK) Ltd against the judgment of the Court of First Instance (Fifth Chamber) delivered on 16 November 2006 in Case T-333/03: Masdar (UK) Ltd v The Commission of the European Communities
Date: 2007-04-14
Institutions: Court of Justice
Subjects: EU programme, General Court (EU), Moldova, Russia, appeal, payment, provision of services, right of action

C 82/20

EN

Official Journal of the European Union

14.4.2007

The Commission submits that, since the adoption of Regulation
No 725/2004, the Community has had exclusive competence
with regard to entering into international obligations in the field
of maritime security. Consequently,
the Member States no
longer have the power to present national views to the Interna-
tional Maritime Organisation on matters which fall within exclu-
sive Community competence, unless they receive such authorisa-
tion from the Community.

(1) OJ L 129, 29.4.2004, p. 6.

Appeal brought on 2 February 2007 by Masdar (UK) Ltd
against the judgment of the Court of First Instance (Fifth
Chamber) delivered on 16 November 2006 in Case T-333/
03: Masdar (UK) Ltd v The Commission of the European
Communities

(Case C-47/07 P)

(2007/C 82/37)

Language of the case: English

Action brought on 1 February 2007 — Commission of the
European Communities v Italian Republic

(Case C-46/07)

(2007/C 82/36)

Parties

Appellant: Masdar (UK) Ltd (represented by: A. Bentley and P.
Green, Barristers)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

Language of the case: Italian

The applicant claims that the Court should:

Parties

Applicant: Commission of the European Communities (repre-
sented by: L. Pignataro-Nolin and M. van Beek, acting as Agents)

Defendant: Italian Republic

Form of order sought

The applicant claims that the Court should:

— declare that, by maintaining in force a provision by which
public employees are entitled to receive the old-age pension
at different ages depending on whether they are male or
female, the Italian Republic has failed to fulfil its obligations
under Article 141 EC;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Commission claims that the pension scheme managed by
INPDAP (National Provident Institution for the Employees of
is a discriminatory occupational scheme
Public Authorities)
contrary to Article 141 EC, since it provides that the general
pensionable age for men is 65 and for women 60.

— set aside in its entirety the judgment of the Court of First
Instance of 16 November 2006 in Case T-333/03, MASDAR
(U.K) Ltd. v Commission of the European Communities.

— order the Commission to pay to the Applicant:

(i) The sum of EUR 448,947.78 claimed by the Appellant
in Case T-333/03, or
sum of
EUR 249,314.35 or such other sum as the Court
considers appropriate; and

failing

this,

the

(ii) Interest on the amount in (i);

— order the Commission to pay the costs of

the present
proceedings and of the proceedings before the Court of First
Instance.

Pleas in law and main arguments

The Appellant submits that the judgment of the Court of First
Instance (‘CFI’) should be set aside on the following grounds:

1. The CFI erred in law when it characterised the Appellant as
merely having acted pursuant to its contractual obligations
towards Helmico, as a result of which the CFI dismissed the
Appellant's claims founded on unjust enrichment and nego-
tiorum gestio. In doing so, the CFI failed to have regard to the
Appellant's entitlement to terminate the sub-contracts as at 2
October 1998.

2. Irrespective of whether the Appellant acted pursuant to a
contractual obligation towards Helmico or not, the CFI erred
in law by failing to take into consideration (i) the fact that
the Commission was not in the position of an ordinary
contractor, but had powers of recovery which it could exer-
cise pursuant to the Financial Regulation of 21 December
1977 applicable to the general budget of
the European
Communities (1) and (ii) how such powers were exercised by
the Commission.

14.4.2007

EN

Official Journal of the European Union

C 82/21

3. The CFI erred in law in holding that (i) the Appellant cannot
be said to have acted benevolently, (ii) the Commission was
able to manage the project itself, and (iii) there is a require-
ment that a person claiming under the principle of nego-
tiorum gestio must necessarily act without the knowledge of
the principal.

4. The CFI's findings on the pleas of unjust enrichment and
negotiorum gestio on the one hand, and the plea of legitimate
expectations on the other hand, are inconsistent.

5. In rejecting the Appellant's claim based on negligence or
fault liability, the CFI erred in considering that insufficient
argument had been adduced by the Appellant, given that the
matter speaks for itself on the facts of this case in the par-
ticular
the Commission exercises
powers of recovery under the Financial Regulation.

circumstances where

6. The CFI erred in holding (i) that there was no evidence
before the Court to prove that the assurances relied upon by
the Appellant were communicated at
the meeting of 2
October 1998 and (ii) that it was highly unlikely that such
assurances were communicated.

7. The CFI erred in law in holding that

the Commission's
failure to make a note of the meeting of 2 October 1998
established the informality of that meeting and, from this
the
it erroneously discounted the possibility of
error,
Commission having communicated such assurances by one
means or another. Further,
the CFI wrongly took into
account the manner by which the assurances were conveyed,
and erroneously failed to take into account
the proper
context, namely a context in which the Commission had
committed itself to do no more than pay for work done
pursuant to a properly constituted contractual specification,
and for which the Commission already had a budget.

(1) OJ L 356, p. 1.

Reference for a preliminary ruling from the Cour d'Appel
de Liège (Belgium) lodged on 5 February 2007 — Belgian
State v Les Vergers du Vieux Tauves SA

Parties to the main proceedings

Applicant: Belgian State

Defendant: Les Vergers du Vieux Tauves SA

Question referred

Is the Law of 28 December 1992, which amended the wording
of Article 202 of the 1992 Code of Taxation on Income by
referring to Directive 90/435/EEC (1) and required that the bene-
ficial owner of dividends have a holding of capital
in the
Company which distributed such dividend, in as much as that
Law does not explicitly specify that the holding must be as full
owner and therefore implicitly permits the interpretation made
by the respondent, that the mere holding of a right of usufruct
of shareholdings in the capital carries the right to tax exemption
on such dividends, compatible with the provisions of that Direc-
tive concerning holdings in capital, and in particular with its
Articles 3, 4 and 5?

(1) Council Directive 90/435/EEC of 23 July 1990 on the common
system of taxation applicable in the case of parent companies and
subsidiaries of different Member States (OJ L 225, p. 6).

Reference for a preliminary ruling from the Arbeidshof te
Brussel (Belgium) lodged on 6 February 2007 — Centrum
voor gelijkheid van kansen en voor racismebestrijding v
NV Firma Feryn

(Case C-54/07)

(2007/C 82/39)

Language of the case: Dutch

(Case C-48/07)

(2007/C 82/38)

Language of the case: French

Referring court

Arbeidshof te Brussel

Parties to the main proceedings

Referring court

Appellant: Centrum voor gelijkheid van kansen en voor racisme-
bestrijding

Cour d'Appel de Liège

Respondent: NV Firma Feryn