Case C-49/07: Reference for a preliminary ruling from the Diikitiko Efetio Athinon (Greece) lodged on 5 February 2007 — Motosikletistiki Omospondia Ellados (MOT.O.E) v Elliniko Dimosio
Date: 2007-04-28
Institutions: Court of Justice
Subjects: interpretation of the law, legal person, motor car, motor vehicle, sporting event, sports body

C 95/16

EN

Official Journal of the European Union

28.4.2007

— in any event, award EUR 30 000 by way of compensa-
tion for material and non-material damage and harm
suffered by the applicant, that amount being assessed on
equitable principles on a provisional basis;

— order the defendant to pay the entire costs incurred at first

instance and on appeal.

Pleas in law and main arguments

The applicant raises six pleas in support of her appeal.

By her first plea in law, she submits, first of all, that the Court
of First Instance, by declaring the first head of claim for annul-
ment inadmissible, disregarded the conditions of admissibility of
an appeal based on Article 236 EC and Articles 90 and 91 of
the Staff Regulations and, in particular, the concept of a legal
interest in bringing proceedings. The decision to recruit Mr D.
S. as an auxiliary member of staff by 1 May 2004 in fact had
the effect, first, of increasing the number of candidates for the
selection procedure for contractual agents for the position occu-
pied by the applicant, and, secondly, of making it impossible to
give the applicant a contract as a temporary member of staff,
which clearly highlighted the interest which she had in securing
annulment of that decision.

By her second plea, the applicant argues that the Court did not
fulfil its general duty to state reasons by considering that the
information contained in the decision of 27 April 2004 could
be regarded as constituting a statement of reasons of some kind
and that the supplementary information provided in the course
of the proceedings compensated for the initial inadequacy of the
statement of reasons. First, the decision of 27 April 2004 did
not contain any reasons as to the particular situation of the
applicant and did not set out any specific circumstances or facts
known to the applicant such as to enable her to ascertain the
scope of the decision. Secondly, such a lack of reasons cannot
be covered by explanations provided by the competent authority
after the appeal was lodged on pain of infringing the rights of
the defence and the principal of equal treatment of the parties
before the Community judicature.

By her fourth plea, the applicant submits that the Court also
distorted the evidence and disregarded the concept of abuse of
process by holding that the evidence put forward by the appli-
cant did not enable an abuse of process or infringement of the
interest of the service to be established. All the factors put
forward by the applicant constitute, on the contrary, both
consistent and relevant evidence of an abuse of process since,
although two distinct sets of proceedings were brought by the
defendant, the duties which they sought to appeal were the
same, which reflects the desire of the defendant to give advan-
tage to Mr D. S. in taking up the duties of the applicant after
30 April 2004.

By her fifth plea, the applicant argues that the Court disregarded
the concepts of the interest of the service and manifest error of
assessment by holding that the selection procedure for contrac-
tual agents had not been infringed and by refusing, as a result,
to review the assessment made by the selection committee of
the applicant's oral examination.

By her six plea, the applicant alleges, finally, breach by the
Court of the principles of due care and sound administration.

Reference for a preliminary ruling from the Diikitiko
Efetio Athinon (Greece) lodged on 5 February 2007 —
Motosikletistiki Omospondia Ellados (MOT.O.E) v Elliniko
Dimosio

(Case C-49/07)

(2007/C 95/27)

Language of the case: Greek

Referring court

Diikitiko Efetio Athinon

By her third plea, the applicant asserts that the Court distorted
the evidence by concluding, in paragraph 105 of the judgment
under appeal, that the selection procedure was not based on a
comparative examination of the candidates' merits. That conclu-
sion is in fact contradicted both by the defendant's written
pleadings and by other passages in the judgment under appeal
in which the Court itself makes explicit reference to a compara-
tive examination — within that recruitment procedure — of the
candidates' merits.

Parties to the main proceedings

Applicant: Motosikletistiki Omospondia Ellados (MOT.O.E)

Respondent: Elliniko Dimosio (Greek State)

28.4.2007

EN

Official Journal of the European Union

C 95/17

Questions referred

1. Can Articles 82 and 86 of the EC Treaty be interpreted so as
also to include within their scope the activity of a legal
person which has the status of national representative of the
Fédération Internationale de Motocyclisme (the International
Motorcycling Federation) and engages in economic activity as
described above by entering into sponsorship, advertising
and insurance contracts, in the context of the organisation of
motor sport events by it?

2. Should the answer be in the affirmative, is Article 49 of Law
2696/1999, which,
in relation to issue by the competent
national public authority (in the present case, the Ministry
for Public Order) of permission to organise a motor-vehicle
competition, gives the foregoing legal person the power to
the
provide a concurring opinion as to the holding of
competition without
to
that power being made subject
restrictions, obligations and review, compatible with those
provisions of the Treaty?

Reference for a preliminary ruling from the Marknadsdom-
stolen (Sweden) lodged on 6 February 2007 — Kanal 5
Limited and TV 4 Aktiebolag v Föreningen Svenska Tonsät-
tares Internationella Musikbyrå (STIM)

(Case C-52/07)

(2007/C 95/28)

Language of the case: Swedish

Referring court

Marknadsdomstolen

Parties to the main proceedings

Applicants: Kanal 5 Limited and TV 4 Aktiebolag

nels' revenue from such television broadcasts directed at the
general public?

B. Is Article 82 EC to be interpreted as meaning that a practice
constitutes abuse of a dominant position where a copyright
management organisation which has a de facto monopoly
position in a Member State applies to or imposes in respect
of commercial television channels a remuneration model for
the right to make available music in television broadcasts
directed at the general public which involves the remunera-
tion being calculated as a proportion of the television chan-
nels' revenue from such television broadcasts directed at the
general public, where there is no clear link between the
revenue and what the copyright management organisation
makes available, that is, authorisation to perform copyright-
protected music, as is often the case with, for example, news
and sports broadcasts and where revenue increases as a
result of development of programme charts, investments in
technology and customised solutions?

C. Is the answer to Question A or B affected by the fact that it
to identify and quantify both the music

is possible
performed and viewing?

D. Is the answer to Question A or B affected by the fact that
the remuneration model (revenue model) is not applied in a
similar manner in respect of a public service company?

Reference for a preliminary ruling from the Landesgericht
Bolzano (Italy)
lodged on 1 February 2007 — Othmar
Michaeler and Subito GmbH v Labour Inspectorate of the
Autonomous Province of Bolzano (now the employment
protection office) and the Autonomous Province of
Bolzano

(Case C-55/07)

(2007/C 95/29)

Language of the case: German

Defendant:
Musikbyrå (STIM)

Föreningen Svenska Tonsättares

Internationella

Referring court

Landesgericht Bolzano

Questions referred

A. Is Article 82 EC to be interpreted as meaning that a practice
constitutes abuse of a dominant position where a copyright
management organisation which has a de facto monopoly
position in a Member State applies to or imposes in respect
of commercial television channels a remuneration model for
the right to make available music in television broadcasts
directed at the general public which involves the remunera-
tion being calculated as a proportion of the television chan-

Parties to the main proceedings

Applicant: Othmar Michaeler and Subito GmbH

Defendant: Labour Inspectorate of the Autonomous Province of
Bolzano (now the employment protection office) and the
Autonomous Province of Bolzano