Case C-362/08 P: Appeal brought on 7 August 2008 by Internationaler Hilfsfonds e.V. against the judgment delivered by the Court of First Instance (Fifth Chamber) on 5 June 2008 in Case T-141/05 Internationaler Hilfsfonds e.V. v Commission
Date: 2008-08-07
Institutions: Court of Justice
Subjects: European Commission, access to EU information, action for annulment (EU), disclosure of information

25.10.2008

EN

Official Journal of the European Union

C 272/11

Reference for a preliminary ruling from the Landesgericht
Feldkirch (Austria) lodged on 28 July 2008 — Vorarlberger
v WGV-Schwäbische Allgemeine
Gebietskrankenkasse

Versicherungs AG

(Case C-347/08)

(2008/C 272/18)

Language of the case: German

Referring court

Landesgericht Feldkirch

Parties to the main proceedings

Applicant: Vorarlberger Gebietskrankenkasse

Defendant: WGV-Schwäbische Allgemeine Versicherungs AG

Parties to the main proceedings

Applicant: Christian Grimme

Defendant: Deutsche Angestellten Krankenkasse

Question referred

Are the provisions of the Agreement between the European
Community and its Member States, of the one part, and the
Swiss Confederation, of the other, on the free movement of
persons (OJ 2002 L 114, p. 6) (1), in particular Articles 1, 5, 7
and 16 thereof and Articles 12, 17, 18 and 19 of Annex I
thereto, to be interpreted as meaning that they preclude a rule
which obliges a member of a managing board of a company
limited by shares governed by Swiss law who is employed in
Germany to be insured in the German statutory pension insur-
ance scheme, whereas members of managing boards of compa-
nies limited by shares governed by German law are exempt
from that obligation?

Questions referred

(1) OJ 2002 L 114, p. 6.

1. Is the reference in Article 11(2) of Council Regulation (EC)
No 44/2001 of 22 December 2000 on jurisdiction and the
recognition and enforcement of
judgments in civil and
commercial matters (1) to Article 9(1)(b) of that regulation to
be interpreted as meaning that a social security institution, to
which the claims of the directly injured party have passed by
operation of law (Paragraph 332 of the Allgemeines Sozial-
versicherungsgesetz (General Social Insurance Law, ASVG)),
may bring an action directly against the insurer in the courts
for the place in a Member State where the social security
institution is established, provided that such a direct action is
permitted and the insurer is domiciled in a Member State?

2. If the answer to Question 1 is in the affirmative: Does that
jurisdiction exist even if at the time of bringing the action
the directly injured party is not permanently or ordinarily
resident in the Member State in which the social security
institution is established?

Appeal brought on 7 August 2008 by Internationaler
Hilfsfonds e.V. against the judgment delivered by the Court
of First Instance (Fifth Chamber) on 5 June 2008 in Case
T-141/05 Internationaler Hilfsfonds e.V. v Commission

(Case C-362/08 P)

(2008/C 272/20)

Language of the case: German

(1) OJ 2001 L 12, p. 1.

Parties

Appellant:
Kaltenecker, lawyer)

Internationaler Hilfsfonds e.V.

(represented by: H.

Other party to the proceedings: Commission of
Communities

the European

Reference for a preliminary ruling from the Bundes-
lodged on 4 August 2008 —
sozialgericht
Christian Grimme v Deutsche Angestellten Krankenkasse

(Germany)

Form of order sought

(Case C-351/08)

(2008/C 272/19)

Language of the case: German

Referring court

Bundessozialgericht

— set aside the judgment of the Court of First Instance of

5 June 2008;

— give final judgment in the matter and annul the decision of
the Commission of 14 February 2005 (Article 54 of the
Statutes of the Court of Justice);

— in the alternative, refer the case back to the Court of First

Instance;

— order the Commission to pay the costs of the proceedings,

including the appellant's costs.

C 272/12

EN

Official Journal of the European Union

25.10.2008

Pleas in law and main arguments

inadmissible on the following grounds:

The Court of First Instance declared the action for annulment
brought by the appellant against the decision of the Commis-
sion, which refused to grant the appellant access to certain
documents relating to Contract LIEN 97-2011 concerning the
co-financing of a medical aid programme organised in Kazakh-
stan,
the action for
annulment was brought against a decision which merely
confirms a previous decision not contested within the time-limit
for initiating proceedings, and even if the contested decision
were not merely confirmatory, it could also not be considered
to be a decision against which, for the purposes of Regulation
No 1049/2001, an action for annulment can be brought.

The judgment contains both serious errors of law and of fact.

First, as regards classifying the contested decision, the Court of
First Instance failed to take into consideration that the notice
which the Commission had sent to the appellant earlier by way
of a response to a confirmatory application within the meaning
of Article 7(2) of Regulation No 1049/2001 should have been
regarded as invalid, since it had not been written by the Secre-
tary General of the Commission and did not provide grounds or
instructions on legally recognised rights. Since, as a conse-
quence, the reply had no legal effect, it would not have been
possible to bring an action for annulment against it. Therefore,
only the contested decision — in other words, the Commis-
sion's reply to the appellant's new application — can be consid-
ered to be a final notice, which,
in contrast to the position
taken by the Court of First Instance, was actually sent following
the situation by the
a fresh and complete examination of
Commission. Consequently,
contested decision cannot
the
‘simply be confirmatory’, since a measure that has no legal effect
cannot be confirmed. However, regrettably, the Court of First
the earlier
Instance failed to examine the legal validity of
Commission notice, which led to the wrong classification of the
contested decision of the Commission.

Second, the Court of First Instance's claim that the contested
decision constitutes a reply to an initial application within the
meaning of Regulation No 1049/2001 and could,
for that
reason, not be considered to be a decision against which an
action for annulment can be brought, is based on a wrong inter-
pretation of Article 7(2) of Regulation No 1049/2001. The
Court of First Instance overlooked that it is possible, but not
obligatory under that regulation to make a confirmatory appli-
cation. Taking that into consideration, and in the light of the
Commission's hostile attitude throughout the entire preparatory
phase, the appellant was no longer under an obligation to make
a confirmatory application. In the course of the proceedings,
the appellant requested that a reference to the nature of the
regulation be added to the minutes of the hearing, since those
minutes were incomplete in this respect. By refusing that
request to make a correction to the minutes of the hearing, the
Court of First Instance also committed a procedural error.

Reference for a preliminary ruling from the Oberlandes-
gericht München (Germany) lodged on 11 August 2008 —
Zentrale zur Bekämpfung unlauteren Wettbewerbs eV v
Adolf Darbo AG

(Case C-366/08)

(2008/C 272/21)

Language of the case: German

Referring court

Oberlandesgericht München

Parties to the main proceedings

Applicant: Zentrale zur Bekämpfung unlauteren Wettbewerbs eV

Defendant: Adolf Darbo AG

Questions referred

1. Is the term low-sugar jams in Part A of Annex III to European
Parliament and Council Directive 95/2/EC of 20 February
1995 on food additives other than colours and sweeteners (1)
to be interpreted as also covering jams named extra jam?

2. If the answer to Question 1 is affirmative:

a) How is the term low-sugar jams in Part A of Annex III to

Directive 95/2/EC to be interpreted otherwise?

b) In particular is it to be interpreted as also covering jams
named extra jam with a soluble dry matter content of
58 %?

3. If the answers to Questions 1 and 2(b) are affirmative:

Is the second paragraph of Part II of Annex I to Council
Directive 2001/113/EC of 20 December 2001 relating to
jellies and marmalades and sweetened chestnut
fruit jams,
purée intended for human consumption (2) to be interpreted
as meaning that the name extra jam can be authorised also in
respect of jams which have a soluble dry matter content of
less than 60 % where in the case of such jams no less strict
requirements are imposed on the name jam?

(1) OJ 1995 L 61, p. 1.
(2) OJ 2002 L 10, p. 67.