8.1.2005

EN

Official Journal of the European Union

C 6/1

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JUDGMENT OF THE COURT

(First Chamber)

of 18 November 2004

in Joined Cases C-10/02 and C-11/02 (reference for a preliminary ruling from the Tribunale amministrativo regionale per la Puglia): Anna Fascicolo and Others, Enzo De Benedictis and Others v Regione Puglia (C-10/02) and Grazia Berardi and Others, Lucia Vaira and Others v Azienda Unità Sanitaria Locale BA/4 and Others (C-11/02) (1)

(Free movement of doctors - Directives 86/457/EEC and 93/16/EEC - Recognition of diplomas, certificates and other evidence of formal qualifications - Requirement that Member States should make the exercise of the activities of general practitioner under their national social security scheme conditional on possession of a specific diploma - Acquired rights - Whether evidence of authorisation obtained before 1 January 1995 is equivalent to the specific training diploma - Drawing up of the list of general practitioners in order to fill posts available in a region on the basis of the qualifications possessed)

(2005/C 6/01)

Language of the case: Italian

In Joined Cases C-10/02 and C-11/02: references for a preliminary ruling under Article 234 EC from the Tribunale amministrativo regionale per la Puglia (Italy), made by decisions of 10 October 2001, received at the Court on 15 January 2002, in the proceedings between Anna Fascicolo and Others, Enzo De Benedictis and Others v Regione Puglia, Maria Paciolla, Assessorato alla Sanità e Servizi Sociali della Regione Puglia, Coordinatore del Settore Sanità, Azienda Unità Sanitaria Locale BR/1, Felicia Galietti and Others., Azienda Unità Sanitaria Locale BA/4, Madia Evangelina Magrì, Azienda Unità Sanitaria Locale BA/1, Azienda Unità Sanitaria Locale BA/3 (C-10/02), and Grazia Berardi and Others, Lucia Vaira and Others, v Azienda Unità Sanitaria Locale BA/4, Angelo Michele Cea, Scipione De Mola, Francesco d'Argento, Azienda Unità Sanitaria Locale FG/2, Antonella Battista and Others, Nicola Brunetti andOthers, Azienda Unità Sanitaria Locale BA/3, Azienda Unità Sanitaria Locale FG/3, Erasmo Fiorentino (C-11/02) — the Court (First Chamber), composed of: P. Jann, President of the Chamber, R. Silva de Lapuerta, K. Lenaerts, S. von Bahr and K. Schiemann (Rapporteur), Judges; J. Kokott, Advocate General; Múgica Arzamendi, Principal Administrator, has given a judgment on 18 November 2004, in which it has ruled:

1.

Article 36(2) of Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications does not require the Member States to consider authorisation obtained before 1 January 1995 to carry on the profession of general medical practitioner under the national health system to be equivalent to obtaining the certificate of specific training in general medical practice for the purpose of access to general practitioner posts.

2.

It is not contrary to Article 36(2) of Directive 93/16 for Member States to provide for doctors in possession of both the certificate of specific training in general medical practice and authorisation on 31 December 1994 to practise as general practitioners under the national health system: — a pool of reserved posts more extensive than that provided either for doctors in possession of that certificate or for doctors who have been granted authorisation, by permitting them to compete in those two classes of reserved posts simultaneously; — yet more advantageous treatment by awarding them, when they compete for the quota of posts reserved to doctors authorised on 31 December 1999 to practise the profession, the number of additional points attributed on account of their having obtained that certificate.

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(1)   OJ C 68 of 16.3.2002.

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8.1.2005

EN

Official Journal of the European Union

C 6/2

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JUDGMENT OF THE COURT

(Grand Chamber)

of 9 November 2004

in Case C-46/02 (reference for a preliminary ruling from the Vantaan käräjäoikeus): Fixtures Marketing Ltd v Oy Veikkaus Ab (1)

(Directive 96/9/EC - Legal protection of databases - Sui generis right - Definition of investment in the obtaining, verification or presentation of the contents of a database - Football fixture lists - Betting)

(2005/C 6/02)

Language of the case: Finnish

In Case C-46/02: reference for a preliminary ruling under Article 234 EC from the Vantaan käräjäoikeus (Finland), by decision of 1 February 2002, received at the Court on 18 February 2002, in the proceedings between Fixtures Marketing Ltd and Oy Veikkaus Ab — the Court (Grand Chamber), composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas and K. Lenaerts (Rapporteur), Presidents of Chambers, J.-P. Puissochet, R. Schintgen, N. Colneric and J.N. Cunha Rodrigues, Judges; C. Stix-Hackl, Advocate General; M. Múgica Arzamendi and M.-F. Contet, Principal Administrators, for the Registrar, has given a judgment on 9 November 2004, in which it has ruled:

The expression ‘investment in … the obtaining … of the contents’ of a database in Article 7(1) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases must be understood to refer to the resources used to seek out existing independent materials and collect them in the database. It does not cover the resources used for the creation of materials which make up the contents of a database. In the context of drawing up a fixture list for the purpose of organising football league fixtures, therefore, it does not cover the resources used to establish the dates, times and the team pairings for the various matches in the league.

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(1)  OJ C 109 of 4.5.2002.

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8.1.2005

EN

Official Journal of the European Union

C 6/2

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JUDGMENT OF THE COURT

(Second Chamber)

of 11 November 2004

in Joined Cases C-183/02 P and C-187/02 P: Daewoo Electronics Manufacturing España SA (Demesa) (C-183/02) and Territorio Histórico de Álava – Diputación Foral de Álava (C-187/02) v Commission of the European Communities (1)

(Appeal - State aid - Tax measures - Legitimate expectations - New pleas in law)

(2005/C 6/03)

Language of the case: Spanish

In Joined Cases C-183/02 P and C-187/02 P: two appeals under Article 49 of the EC Statute of the Court of Justice lodged on 15 and 16 May 2002, Daewoo Electronics Manufacturing España SA (Demesa), established in Vitoria (Spain), (Lawyers: A. Creus Carreras and B. Uriarte Valiente) (C-183/02 P) Territorio Histórico de Álava – Diputación Foral de Álava (Lawyers: A. Creus Carreras, B. Uriarte Valiente and M. Bravo-Ferrer Delgado) (C-187/02 P), supported by Comunidad Autónoma del País Vasco (Lawyer: E. Garayar Gutiérrez), the other parties to the proceedings being: Commission of the European Communities (Agents: F. Santaolalla Gadea and J.L. Buendía Sierra), Asociación Nacional de Fabricantes de Electrodomésticos de Línea Blanca (ANFEL), established in Madrid (Spain), and Conseil européen de la construction d'appareils domestiques (CECED), established in Brussels (Belgium) – the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann (Rapporteur) and N. Colneric, Judges; J. Kokott, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 11 November 2004, in which:

1.	Joins Cases C-183/02 P and C-187/02 P for the purposes of the judgment;

2.	Dismisses the appeals;

3.	Orders the appellants, in addition to bearing their own costs, to pay those incurred by the Commission of the European Communities;

4.	Orders the Comunidad Autónoma del País Vasco to bear its own costs.

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(1)  OJ C 180 of 27.7.2002.

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8.1.2005

EN

Official Journal of the European Union

C 6/3

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JUDGMENT OF THE COURT

(Sixth Chamber)

of 28 October 2004

in Case C-185/02 Commission of the European Communities v Portuguese Republic (1)

(Failure of a Member State to fulfil its obligations - Waste management - Disposal of polychlorinated biphenyls and polychlorinated terphenyls - Directive 96/59/EC)

(2005/C 6/04)

Language of the case: Portuguese

In Case C-185/02 Commission of the European Communities (Agent: A. Caeiros) v Portuguese Republic (Agents: L. Fernandes, M. Telles Romão and M.J. Lois) – action under Article 226 EC for failure to fulfil obligations, brought on 17 May 2002 – the Court (Sixth Chamber), composed of: A. Borg Barthert, President of the Chamber, S. von Bahr and J. Malenovský (Rapporteur), Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, gave a judgment on 28 October 2004, in which it:

1.

Declares that, by failing to communicate the plans and outlines referred to in Article 11 of Council Directive 96/59/EC of 16 September 1996 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB and PCT) to the Commission of the European Communities within the prescribed period, the Portuguese Republic has failed to fulfil its obligations under that provision;

2.	Dismisses the remainder of the action;

3.	Orders the Commission of the European Communities and the Portuguese Republic to bear their own costs.

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(1)  OJ C 180 of 27.7.2002

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8.1.2005

EN

Official Journal of the European Union

C 6/3

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JUDGMENT OF THE COURT

(Second Chamber)

of 11 November 2004

in Joined Cases C-186/02 P and C-188/02 P: Ramondín SA, Ramondín Cápsulas SA (C-186/02 P), Territorio Histórico de Álava – Diputación Foral de Álava (C-188/02 P) v Commission of the European Communities (1)

(Appeal - State aid - Tax measures - Misuse of powers - Statement of reasons - New pleas in law)

(2005/C 6/05)

Language of the case: Spanish

In Joined Cases C-186/02 P and C-188/02 P: two appeals under Article 49 of the EC Statute of the Court of Justice, brought on 15 and 16 May 2002, Ramondín SA, established in Logroño (Spain), and Ramondín Cápsulas SA, established in Laguardia (Spain), (Lawyer: J. Lazcano-Iturburu Ayestaran) C-186/02 P, Territorio Histórico de Álava – Diputación Foral de Álava (Lawyers: A. Creus Carreras, B. Uriarte Valiente and M. Bravo-Ferrer Delgado) C-188/02 P, the other parties to the proceedings being: Commission of the European Communities (Agents: F. Santaolalla Gadea and J. L. Buendía Sierra), supported by Comunidad Autónoma de La Rioja, (Lawyer: J. Criado Gámez) - the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann (Rapporteur), F. Macken, N. Colneric and J. N. Cunha Rodrigues, Judges; J. Kokott, Advocate General; M. Múgica Azarmendi, Principal Administrator, for the Registrar, has given a judgment on 11 November 2004, in which it:

1.	Joins Cases C-186/02 P and C-188/02 P for the purposes of the judgment;

2.	Dismisses the appeals;

3.	Orders the appellants, in addition to bearing their own costs, to pay those incurred by the Commission and the Comunidad Autónoma de La Rioja.

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(1)  OJ C 191 of 10.8.2002.

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8.1.2005

EN

Official Journal of the European Union

C 6/4

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JUDGMENT OF THE COURT

(Grand Chamber)

of 9 November 2004

in Case C-203/02 (reference for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division)): The British Horseracing Board Ltd and Others v William Hill Organization Ltd (1)

(Directive 96/9/EC - Legal protection of databases - Sui generis right - Obtaining, verification or presentation of the contents of a database - (In)substantial part of the contents of a database - Extraction and re-utilisation - Normal exploitation - Unreasonable prejudice to the legitimate interests of the maker - Horseracing database - Lists of races - Betting)

(2005/C 6/06)

Language of the case: English

In Case C-203/02: reference for a preliminary ruling under Article 234 EC from the Court of Appeal (England and Wales) (Civil Division), made by decision of 24 May 2002, received at the Court on 31 May 2002, in the proceedings between The British Horseracing Board Ltd and Others and William Hill Organization Ltd - the Court (Grand Chamber), composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas and K. Lenaerts (Rapporteur), (Presidents of Chambers), J.-P. Puissochet, R. Schintgen, N. Colneric and J.N. Cunha Rodrigues, Judges; C. Stix-Hackl, Advocate General; M. Múgica Arzamendi and M.-F. Contet, Principal Administrators, for the Registrar, has given a judgment on 9 November 2004, in which it has ruled:

1.

The expression ‘investment in … the obtaining … of the contents’ of a database in Article 7(1) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases must be understood to refer to the resources used to seek out existing independent materials and collect them in the database. It does not cover the resources used for the creation of materials which make up the contents of a database. The expression ‘investment in … the … verification … of the contents’ of a database in Article 7(1) of Directive 96/9 must be understood to refer to the resources used, with a view to ensuring the reliability of the information contained in that database, to monitor the accuracy of the materials collected when the database was created and during its operation. The resources used for verification during the stage of creation of materials which are subsequently collected in a database do not fall within that definition. The resources used to draw up a list of horses in a race and to carry out checks in that connection do not constitute investment in the obtaining and verification of the contents of the database in which that list appears.

2.

The terms ‘extraction’ and ‘re-utilisation’ as defined in Article 7 of Directive 96/9 must be interpreted as referring to any unauthorised act of appropriation and distribution to the public of the whole or a part of the contents of a database. Those terms do not imply direct access to the database concerned. The fact that the contents of a database were made accessible to the public by its maker or with his consent does not affect the right of the maker to prevent acts of extraction and/or re-utilisation of the whole or a substantial part of the contents of a database.

3.

The expression ‘substantial part, evaluated … quantitatively, of the contents of [a] database’ in Article 7 of Directive 96/9 refers to the volume of data extracted from the database and/or re-utilised and must be assessed in relation to the total volume of the contents of the database. The expression ‘substantial part, evaluated qualitatively … of the contents of [a] database’ refers to the scale of the investment in the obtaining, verification or presentation of the contents of the subject of the act of extraction and/or re-utilisation, regardless of whether that subject represents a quantitatively substantial part of the general contents of the protected database. Any part which does not fulfil the definition of a substantial part, evaluated both quantitatively and qualitatively, falls within the definition of an insubstantial part of the contents of a database.

4.

The prohibition laid down by Article 7(5) of Directive 96/9 refers to unauthorised acts of extraction or re-utilisation the cumulative effect of which is to reconstitute and/or make available to the public, without the authorisation of the maker of the database, the whole or a substantial part of the contents of that database and thereby seriously prejudice the investment by the maker.

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(1)  OJ C 180 of 27.7.2002.

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8.1.2005

EN

Official Journal of the European Union

C 6/5

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JUDGMENT OF THE COURT

(First Chamber)

of 11 November 2004

in Case C-216/02 (reference for a preliminary ruling from the Verwaltungsgerichtshof): Österreichischer Zuchtverband für Ponys, Kleinpferde und Spezialrassen v Burgenländische Landesregierung (1)

(Free movement of goods - Intra-Community trade in equidæ - Procedure for the approval or recognition of organisations and associations which maintain or establish stud-books for registered equidæ - Article 2(2) of Decision 92/353/EEC)

(2005/C 6/07)

Language of the case: German

In Case C-216/02: reference for a preliminary ruling under Article 234 EC from the Verwaltungsgerichtshof (Austria), made by decision of 23 May 2002, received at the Court on 12 June 2002, in the proceedings between Österreichischer Zuchtverband für Ponys, Kleinpferde und Spezialrassen and Burgenländische Landesregierung, and Österreichischer Shetlandponyzuchtverband (intervener) – the Court (First Chamber), composed of: P. Jann, President of the Chamber, A. Rosas (Rapporteur) and R. Silva de Lapuerta, Judges; D. Ruiz-Jarabo Colomer, Advocate General; M.-F. Contet, Principal Administrator, has given a judgment on 11 November 2004, in which it has ruled:

1.

On a proper construction of the first indent of Article 2(2) of Commission Decision 92/353/EEC of 11 June 1992 laying down the criteria for the approval or recognition of organisations and associations which maintain or establish stud-books for registered equidæ, where one or more of the circumstances mentioned in that provision is or are proved to exist, organisations or associations already officially recognised or approved in respect of a breed of equidæ are not entitled to demand of the competent authorities that the latter should refuse to recognise or approve a new association or organisation maintaining or establishing stud-books for the same breed.

2.

It is not contrary to Community law for the legislation of a Member State to deprive associations and organisations already in existence, which have submitted observations opposing the recognition of a new association or organisation, of a judicial means of obtaining redress challenging the competent national authorities' decision to grant recognition.

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(1)   OJ C 191 of 10.8.2002.

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8.1.2005

EN

Official Journal of the European Union

C 6/5

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JUDGMENT OF THE COURT

(Grand Chamber)

of 16 November 2004

in Case C-245/02 (reference for a preliminary ruling from the Korkein oikeus): Anheuser-Busch Inc v Budějovický Budvar, národní podnik (1)

(Agreement establishing the World Trade Organisation - Articles 2(1), 16(1) and 70 of the TRIPs Agreement - Trade marks - Scope of the proprietor's exclusive right to the trade mark - Alleged use of the sign as a trade name)

(2005/C 6/08)

Language of the case: Finnish

In Case C-245/02: reference for a preliminary ruling under Article 234 EC from the Korkein oikeus (Finland), made by decision of 3 July 2002, received at the Court on 5 July 2002, in the proceedings between Anheuser-Busch Inc and Budějovický Budvar, národní podnik - the Court (Grand Chamber), composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans (Rapporteur), A. Rosas and R. Silva de Lapuerta (Presidents of Chambers), C. Gulmann, R. Schintgen, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and K. Schiemann, Judges; A. Tizzano, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 16 November 2004, in which it has ruled:

1.

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement), as set out in Annex 1 C to the Agreement establishing the World Trade Organisation, approved on behalf of the European Community, as regards matters within its competence, by Council Decision 94/800/EC of 22 December 1994, applies in the event of a conflict between a trade mark and a sign alleged to infringe that trade mark where that conflict arose before the date of application of the TRIPs Agreement but continued beyond that date.

2.

A trade name may constitute a sign within the meaning of the first sentence of Article 16(1) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement). That provision is intended to confer on the proprietor of a trade mark the exclusive right to prevent a third party from using such a sign if the use in question prejudices or is liable to prejudice the functions of the trade mark, in particular its essential function of guaranteeing to consumers the origin of the goods. The exceptions provided for in Article 17 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement) are intended, inter alia, to enable a third party to use a sign which is identical or similar to a trade mark to indicate his trade name, provided that such use is in accordance with honest practices in industrial or commercial matters.

3.

A trade name which is not registered or established by use in the Member State in which the trade mark is registered and in which protection against the trade name in question is sought may be regarded as an existing prior right within the meaning of the third sentence of Article 16(1) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement) if the proprietor of the trade name has a right falling within the substantive and temporal scope of that agreement which arose prior to the trade mark with which it is alleged to conflict and which entitles him to use a sign identical or similar to that trade mark.

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(1)  OJ C 219 of 14.9.2002.

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8.1.2005

EN

Official Journal of the European Union

C 6/6

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JUDGMENT OF THE COURT

(Second Chamber)

of 11 November 2004

in Case C-249/02: Portuguese Republic v Commission of the European Communities (1)

(Agriculture - Common agricultural policy - Financing by the EAGGF - Actual expenditure of a Member State which is less than the forecast expenditure notified by it to the Commission - Power of the Commission to reduce sums paid as advances - Letter from a Director-General of the Commission informing the Member State of that reduction - Act having binding legal effects)

(2005/C 6/09)

Language of the case: Portuguese

In Case C-249/02: action for annulment under Article 230 EC, brought on 1 July 2002, between Portuguese Republic (Agent: L. Fernandes, assisted by C. Botelho Moniz and E. Maia Cadete) and Commission of the European Communities (Agent: L. Visaggio, assisted by N. Castro Marques) — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann, J.-P. Puissochet (Rapporteur), R. Schintgen and J.N. Cunha Rodrigues, Judges; D. Ruiz-Jarabo Colomer, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 11 November 2004, in which it:

1.

Annuls the decision contained in the letter of the Director-General of the Directorate-General for Agriculture of the Commission of the European Communities of 18 April 2002 concerning a reduction in advances extended in the 2002 financial year in accordance with Article 39(3) of Commission Regulation (EC) No 1750/1999 of 23 July 1999 laying down detailed rules for the application of Council Regulation (EC) No 1257/1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF), as most recently amended by Commission Regulation (EC) No 1763/2001 of 6 September 2001;

2.	Orders the Commission of the European Communities to pay the costs.

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(1)  OJ C 219 of 14.9.2002.

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8.1.2005

EN

Official Journal of the European Union

C 6/6

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JUDGMENT OF THE COURT

(First Chamber)

of 18 November 2004

in Case C-284/02 (reference for a preliminary ruling from the Bundesarbeitsgericht): Land Brandenburg v Ursula Sass (1)

(Social policy - Male and female workers - Article 141 EC - Equal pay - Directive 76/207/EEC - Equal treatment - Maternity leave - Passage to a higher salary grade - Failure to take account of the whole of a period of maternity leave taken under the legislation of the former German Democratic Republic)

(2005/C 6/10)

Language of the case: German

In Case C-284/02: reference for a preliminary ruling under Article 234 EC from the Bundesarbeitsgericht (Germany), made by decision of 21 March 2002, received at the Court on 2 August 2002, in the proceedings between Land Brandenburg and Ursula Sass — the Court (First Chamber), composed of: P. Jann, President of the Chamber, A. Rosas, (Rapporteur), R. Silva de Lapuerta, K. Lenaerts and S. von Bahr, Judges; L. A. Geelhoed, Advocate General; F. Contet, Principal Administrator, for the Registrar, has given a judgment on 18 November 2004, in which it has ruled:

Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions precludes a collective agreement such as the Bundes-Angestelltentarifvertrag-Ost (collective agreement for civil servants on a contractual basis in the public sector in East Germany) from excluding from a qualifying period the part of the period for which a female worker took maternity leave, under the legislation of the former German Democratic Republic, which exceeds the protected period of eight weeks provided for by the legislation of the Federal Republic of Germany to which that agreement refers, where the objectives and purpose of both periods of leave are the protection of women as regards pregnancy and maternity, as provided for by Article 2(3) of that directive. It is for the national court to ascertain whether those conditions are fulfilled.

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(1)  OJ C 261 of 26.10.2002.

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8.1.2005

EN

Official Journal of the European Union

C 6/7

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JUDGMENT OF THE COURT

(Sixth Chamber)

of 18 November 2004

in Case C-317/02: Commission of the European Communities v Ireland (1)

(Failure of a Member State to fulfil obligations - Community system for fisheries - Regulations (EEC) Nos 3760/92 and 2847/93 - Fishing quotas exceeded)

(2005/C 6/11)

Language of the case: English

In Case C-317/02: action under Article 226 EC for failure to fulfil obligations, brought on 11 September 2002, between Commission of the European Communities (Agents: K. Fitch and T. van Rijn, and subsequently T. van Rijn and B. Doherty) and Ireland (Agents: D. O'Hagan, assisted by A. Schuster) - the Court (Sixth Chamber), composed of: A. Borg Barthet (Rapporteur), President of the Chamber, S. von Bahr and J. Malenovský, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, has given a judgment on 18 November 2004, in which it:

1.

Declares that: — by not putting in place the criteria and detailed rules for the use of the fishing quota allocated to it; — by failing to ensure compliance with Community rules on the conservation of aquatic marine living resources by the monitoring of fishing activities, appropriate inspection of landings and the recording of catches, inspections and other controls as required by the relevant Community regulations; — by failing to prohibit provisionally fishing by vessels flying its flag or registered within its territory when the quotas allocated to it were deemed to have been exhausted; and — by failing to initiate administrative or criminal proceedings against the masters of vessels who infringed the applicable regulations or against any person responsible for such an infringement, Ireland has failed to fulfil its obligations under Article 9(2) of Council Regulation (EEC) No 3760/92 of 20 December 1992 establishing a Community system for fisheries and aquaculture and under Articles 2, 21 and 31 of Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy;

2.	Orders Ireland to pay the costs.

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(1)  OJ C 261 of 26.10.2002.

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8.1.2005

EN

Official Journal of the European Union

C 6/7

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JUDGMENT OF THE COURT

(Grand Chamber)

of 16 November 2004

in Case C-327/02 (reference for a preliminary ruling from the Rechtbank te 's-Gravenhage): Lili Georgieva Panayotova and Others v Minister voor Vreemdelingenzaken en Integratie (1)

(Association Agreements between the Communities and, respectively, Bulgaria, Poland and Slovakia - Right of establishment - National legislation under which applications for full residence permits with a view to establishment are rejected without examination where the applicant lacks a temporary residence permit)

(2005/C 6/12)

Language of the case: Dutch

In Case C-327/02: reference for a preliminary ruling under Article 234 EC from the Rechtbank te 's-Gravenhage (Netherlands), made by decision of 16 September 2002, received at the Court on 18 September 2002, in the proceedings between Lili Georgieva Panayotova, Radostina Markova Kalcheva, Izabella Malgorzata Lis, Lubica Sopova, Izabela Leokadia Topa, Jolanta Monika Rusiecka and Minister voor Vreemdelingenzaken en Integratie — the Court (Grand Chamber), composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas and R. Silva de Lapuerta (Presidents of Chambers), J.-P. Puissochet (Rapporteur), R. Schintgen, S. von Bahr and J.N. Cunha Rodrigues, Judges; M. Poiares Maduro, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 16 November 2004, in which it has ruled:

1.

Articles 45(1) and 59(1) of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Bulgaria, of the other part, approved by Decision 94/908/EC, ECSC, Euratom of the Council and the Commission of 19 December 1994, read together, Articles 44(3) and 58(1) of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Poland, of the other part, approved by Decision 93/743/EC, ECSC, Euratom of the Council and the Commission of 13 December 1993, read together, and Articles 45(3) and 59(1) of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Slovak Republic, of the other part, approved by Decision 94/909/EC, ECSC, Euratom of the Council and the Commission of 19 December 1994, read together, do not in principle preclude legislation of a Member State involving a system of prior control which makes entry into the territory of that Member State with a view to establishment as a self-employed person conditional on the issue of a temporary residence permit by the diplomatic or consular services of that Member State in the country of origin of the person concerned or in the country where he is permanently resident. Such a system may legitimately make grant of that permit subject to the condition that the person concerned must show that he genuinely intends to take up an activity as a self-employed person without at the same time entering into employment or having recourse to public funds, and that he possesses, from the outset, sufficient financial resources for carrying out the activity as a self-employed person and has reasonable chances of success. The scheme applicable to such residence permits issued in advance must, however, be based on a procedural system which is easily accessible and capable of ensuring that the persons concerned will have their applications dealt with objectively and within a reasonable time, and refusals to grant a permit must be capable of being challenged in judicial or quasi-judicial proceedings.

2.

Those provisions of the Association Agreements must be interpreted as likewise not in principle precluding such national legislation from providing that the competent authorities of the host Member State are to reject an application for a full residence permit with a view to establishment in accordance with the Association Agreements submitted in the territory of that State when the applicant lacks the temporary residence permit thus required by that legislation.

3.

It is immaterial in this regard that the applicant claims to satisfy clearly and manifestly the necessary substantive requirements for grant of the temporary residence permit and the full residence permit with a view to such establishment or that the applicant is legally resident in the host Member State on another basis on the date of his application where it appears that the latter is incompatible with the express conditions attached to his entry into that Member State and in particular those relating to the authorised duration of the stay.

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(1)  OJ C 274 of 9.11.2002.

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8.1.2005

EN

Official Journal of the European Union

C 6/8

---

JUDGMENT OF THE COURT

(Grand Chamber)

of 9 November 2004

in Case C-338/02 (reference for a preliminary ruling from the Högsta domstolen): Fixtures Marketing Ltd v Svenska Spel AB (1)

(Directive 96/9/EC - Legal protection of databases - Sui generis right - Definition of investment in the obtaining, verification or presentation of the contents of a database - Football fixture lists - Betting)

(2005/C 6/13)

Language of the case: Swedish

In Case C-338/02: reference for a preliminary ruling under Article 234 EC, from the Högsta domstolen (Sweden), by decision of 10 September 2002, received at the Court on 23 September 2002, in the proceedings between Fixtures Marketing Ltd and Svenska Spel AB — the Court (Grand Chamber), composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas and K. Lenaerts (Rapporteur), Presidents of Chambers, J.-P. Puissochet, R. Schintgen, N. Colneric and J.N. Cunha Rodrigues, Judges; C. Stix-Hackl, Advocate General; M. Múgica Arzamendi and M.-F. Contet, Principal Administrators, for the Registrar, has given a judgment on 9 November 2004, in which it has ruled:

The expression ‘investment in … the obtaining … of the contents’ of a database in Article 7(1) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases must be understood to refer to the resources used to seek out existing independent materials and collect them in the database. It does not cover the resources used for the creation of materials which make up the contents of a database. In the context of drawing up a fixture list for the purpose of organising football league fixtures, therefore, it does not cover the resources used to establish the dates, times and the team pairings for the various matches in the league.

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(1)  OJ C 274 of 9.11.2002.

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8.1.2005

EN

Official Journal of the European Union

C 6/9

---

JUDGMENT OF THE COURT

(First Chamber)

of 18 November 2004

in Case C-420/02: Commission of the European Communities v Hellenic Republic (1)

(Failure of a Member State to fulfil obligations - Unlawful deposit of waste at the ‘Pera Galini’ site - Directive 75/442/EEC on waste, as amended by Directive 91/156/EEC - Articles 4 and 9)

(2005/C 6/14)

Language of the case: Greek

In Case C-420/02: action under Article 226 EC for failure to fulfil obligations, brought on 21 November 2002, between Commission of the European Communities (Agent: M. Konstantinidis) and Hellenic Republic (Agent: E. Skandalou) — the Court (First Chamber), composed of: P. Jann, President of the Chamber, R. Silva de Lapuerta (Rapporteur), K. Lenaerts, S. von Bahr and K. Schiemann, Judges; L.A. Geelhoed, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 18 November 2004, in which it:

1.

Declares that, by failing to take the necessary measures to ensure that waste deposited at the ‘Pera Galini’ site in the prefecture of Heraklion will be recovered or disposed of without endangering human health, without risk to water, air, soil, plants and animals and without causing a nuisance through noise or odours, and by granting a permit to operate that installation which does not contain the necessary information, the Hellenic Republic has failed to fulfil its obligations under Articles 4 and 9 of Council Directive 75/442/EEC on waste, as amended by Council Directive 91/156/EEC;

2.	Orders the Hellenic Republic to pay the costs.

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(1)  OJ C 31 of 8.2.2003.

---

8.1.2005

EN

Official Journal of the European Union

C 6/9

---

JUDGMENT OF THE COURT

(Second Chamber)

of 11 November 2004

in Case C-425/02 (reference for a preliminary ruling from the Cour administrative): Johanna Maria Boor, née Delahaye v Ministre de la Fonction publique et de la Réforme administrative (1)

(Safeguarding of employees' rights in the event of a transfer of an undertaking to the State - Possibility for the State to impose rules of public law - Reduction of the amount of remuneration)

(2005/C 6/15)

Language of the case: French

In Case C-425/02: reference for a preliminary ruling under Article 234 EC from the Cour administrative (Luxembourg), made by decision of 21 November 2002, received at the Court on 25 November 2002, in the proceedings between Johanna Maria Boor, née Delahaye and Ministre de la Fonction publique et de la Réforme administrative — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann and N. Colneric (Rapporteur), Judges; P. Léger, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 11 November 2004, in which it has ruled:

Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses must be interpreted as not precluding in principle, in the event of a transfer of an undertaking from a legal person governed by private law to the State, the latter, as new employer, from reducing the amount of the remuneration of the employees concerned for the purpose of complying with the national rules in force for public employees. However, the competent authorities responsible for applying and interpreting those rules are obliged to do so as far as possible in the light of the purpose of that directive, taking into account in particular the employee's length of service, in so far as the national rules governing the position of State employees take a State employee's length of service into consideration for calculating his remuneration. If such a calculation leads to a substantial reduction in the employee's remuneration, such a reduction constitutes a substantial change in working conditions to the detriment of the employees concerned by the transfer, so that the termination of their contracts of employment for that reason must be regarded as resulting from the action of the employer, in accordance with Article 4(2) of Directive 77/187.

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(1)  OJ C 19 of 25.1.2003.

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8.1.2005

EN

Official Journal of the European Union

C 6/10

---

JUDGMENT OF THE COURT

(Grand Chamber)

of 9 November 2004

in Case C-444/02 (reference for a preliminary ruling from the Monomeles Protodikio Athinon): Fixtures Marketing Ltd v Organismos prognostikon agonon podosfairou AE (OPAP) (1)

(Directive 96/9/EC - Legal protection of databases - Definition of database - Scope of the sui generis right - Football fixture lists - Betting)

(2005/C 6/16)

Language of the case: Greek

In Case C-444/02: reference for a preliminary ruling under Article 234 EC from the Monomeles Protodikio Athinon (Greece), made by decision of 11 July 2002, received at the Court on 9 December 2002, the proceedings between Fixtures Marketing Ltd and Organismos prognostikon agonon podosfairou AE (OPAP) — the Court (Grand Chamber), composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas and K. Lenaerts (Rapporteur), Presidents of Chambers, J.-P. Puissochet, R. Schintgen, N. Colneric and J.N. Cunha Rodrigues, Judges; C. Stix-Hackl, Advocate General; M. Múgica Arzamendi and M.-F. Contet, Principal Administrators, for the Registrar, has given a judgment on 9 November 2004, in which it has ruled:

The term database as defined in Article 1(2) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases refers to any collection of works, data or other materials, separable from one another without the value of their contents being affected, including a method or system of some sort for the retrieval of each of its constituent materials.

A fixture list for a football league such as that at issue in the case in the main proceedings constitutes a database within the meaning of Article 1(2) of Directive 96/9.

The expression ‘investment in … the obtaining … of the contents’ of a database in Article 7(1) of Directive 96/9 must be understood to refer to the resources used to seek out existing independent materials and collect them in the database. It does not cover the resources used for the creation of materials which make up the contents of a database. In the context of drawing up a fixture list for the purpose of organising football league fixtures, therefore, it does not cover the resources used to establish the dates, times and the team pairings for the various matches in the league.

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(1)  OJ C 31 of 8.2.2003.

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8.1.2005

EN

Official Journal of the European Union

C 6/10

---

JUDGMENT OF THE COURT

(Second Chamber)

of 11 November 2004

in Case C-457/02: criminal proceedings against Antonio Niselli (1)

(Directives 75/442/EEC and 91/156/EEC - Definition of ‘waste’ - Reusable production or consumption residues - Scrap metal)

(2005/C 6/17)

Language of the case: Italian

In Case C-457/02: reference for a preliminary ruling under Article 234 EC from the Tribunale di Terni (Italy), made by order of 20 November 2002, received at the Court on 18 December 2002, in the criminal proceedings against Antonio Niselli — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann and J.-P. Puissochet (Rapporteur), Judges; J. Kokott, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 11 November 2004, in which it has ruled:

1.

The definition of ‘waste’ in the first subparagraph of Article 1(a) of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991 and by Commission Decision 96/350/EC of 24 May 1996, cannot be construed as covering exclusively substances or objects intended for, or subjected to, the disposal or recovery operations mentioned in Annexes II A and II B to that directive or in the equivalent lists, or to which their holder intends or is required to subject them.

2.

The meaning of ‘waste’ for the purposes of the first subparagraph of Article 1(a) of Directive 75/442, as amended by Directive 91/156 and by Decision 96/350, is not to be interpreted as excluding all production or consumption residues which can be or are reused in a cycle of production or consumption, either without prior treatment and without harm to the environment, or after undergoing prior treatment without, however, requiring a recovery operation within the meaning of Annex II B to that directive.

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(1)   OJ C 31 of 8.2.2003.

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8.1.2005

EN

Official Journal of the European Union

C 6/11

---

JUDGMENT OF THE COURT

(Second Chamber)

of 11 November 2004

in Case C-467/02 (reference for a preliminary ruling from the Verwaltungsgericht Stuttgart): Inan Cetinkaya v Land Baden-Württemberg (1)

(EEC-Turkey Association Agreement - Freedom of movement for workers - Articles 7, first indent, and 14(1) of Decision No 1/80 of the Association Council - Right of residence of the child of a Turkish worker after he has attained his majority - Conditions of an expulsion order - Criminal convictions)

(2005/C 6/18)

Language of the case: German

In Case C-467/02: reference for a preliminary ruling under Article 234 EC from the Verwaltungsgericht Stuttgart (Germany), made by decision of 19 December 2002, received at the Court on 27 December 2002, in the proceedings between Inan Cetinkaya and Land Baden-Württemberg - the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, J.-P. Puissochet, J.N. Cunha Rodrigues (Rapporteur), R. Schintgen and N. Colneric, Judges; P. Léger, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 11 November 2004, in which it has ruled:

1.

The first paragraph of Article 7 of Decision No 1/80 of 19 September 1980 on the development of the Association adopted by the Association Council set up by the Agreement establishing an Association between the European Economic Community and Turkey must be interpreted as applying to a person who has attained his majority and is the child of a Turkish worker duly registered as belonging to the labour force of the host Member State, even though that person was born in and has always resided in the host State.

2.

The first paragraph of Article 7 of Decision No 1/80 precludes the rights conferred by that provision on a Turkish national in Mr Cetinkaya's situation from being limited, after the imposition of a custodial sentence followed by a course of detoxication, on the ground of prolonged absence from the labour force.

3.

Article 14 of Decision No 1/80 precludes national courts, when reviewing the lawfulness of the expulsion of a Turkish national, from not taking into consideration factual matters which occurred after the final decision of the competent authorities and which no longer justify a limitation of the rights of the person concerned within the meaning of that provision.

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(1)   OJ C 70 of 22.3.2003.

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8.1.2005

EN

Official Journal of the European Union

C 6/11

---

JUDGMENT OF THE COURT

(Third Chamber)

of 11 November 2004

in Case C-73/03 Kingdom of Spain v Commission of the European Communities (1)

(State aid - Tax benefits for the transfer of agricultural holdings - Subsidising of loans and guarantees for owners of agricultural holdings)

(2005/C 6/19)

Language of the case: Spanish

In Case C-73/03 Kingdom of Spain (Agent: S. Ortiz Vaamonde) v Commission of the European Communities (Agent: J.L. Buendía Sierra) – action for annulment under the first paragraph of Article 230 EC, brought on 19 February 2003 – the Court (Third Chamber), composed of: A. Rosas, President of the Chamber, J.-P. Puissochet, S. von Bahr (Rapporteur), J. Malenovský and U. Lõhmus, Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, gave a judgment on 11 November 2004, in which it:

1.	Dismisses the action;

2.	Orders the Kingdom of Spain to pay the costs.

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(1)  OJ C 101 of 26.4.2003.

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8.1.2005

EN

Official Journal of the European Union

C 6/12

---

JUDGMENT OF THE COURT

(Third Chamber)

of 28 October 2004

in Case C-124/03 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven): Artrada (Freezone) NV, Videmecum BV, Jac. Meisner Internationaal Expeditiebedrijf BV v Rijksdienst voor de keuring van Vee en Vlees (1)

(Health checks - Production and placing on the market of raw milk, heat-treated milk and milk-based products - Mixture made of sugar, cocoa and skimmed-milk powder, imported from Aruba)

(2005/C 6/20)

Language of the case: Dutch

In Case C-124/03: reference for a preliminary ruling under Article 234 EC from the College van Beroep voor het bedrijfsleven (Netherlands), made by decision of 11 March 2003, received at the Court on 20 March 2003, in the proceedings between Artrada (Freezone) NV, Videmecum BV, Jac. Meisner Internationaal Expeditiebedrijf BV v Rijksdienst voor de keuring van Vee en Vlees — the Court (Third Chamber), composed of: A. Rosas, President of the Chamber (Rapporteur), R. Schintgen and N. Colneric, Judges; M. Poiares Maduro, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 28 October 2004, in which it has ruled:

1.

Article 2(2) of Council Directive 92/46/EEC of 16 June 1992 laying down the health rules for the production and placing on the market of raw milk, heat-treated milk and milk-based products is to be interpreted as meaning that the expression ‘milk for the manufacture of milk-based products’ does not include milk constituents of a product which also contains other non-milk constituents if the milk constituent cannot be separated from the non-milk constituents.

2.

Article 2(4) of Directive 92/46 is to be interpreted as meaning that the term ‘milk-based products’ covers both finished products and semi-finished products which must undergo further processing before they can be offered for sale to the consumer. In such a case, it is with regard to the semi-finished product that it must be ascertained whether its milk content is an essential part, in terms of quantity or for its characterisation. To do that, account must be taken of the characteristics and objective properties of the semi-finished product when it is imported, particularly the proportion of milk or milk product in the semi-finished product, the use which can be made of the semi-finished product and its taste.

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(1)  OJ C 146 of 21.6.2003.

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8.1.2005

EN

Official Journal of the European Union

C 6/12

---

JUDGMENT OF THE COURT

(First Chamber)

of 18 November 2004

in Case C-126/03: Commission of the European Communities v Federal Republic of Germany (1)

(Failure of a Member State to fulfil its obligations - Directive 92/50/EEC - Public contracts - Waste transport services - Procedure without prior publication of a contract notice - Contract concluded by a contracting authority in relation to an economic activity subject to competition - Contract concluded by a contracting authority in order to be able to submit an offer in a tender procedure - Proof of the service provider's capabilities - Possibility of relying on the capabilities of a third party - Subcontracting - Consequences of a judgment finding a failure to fulfil an obligation)

(2005/C 6/21)

Language of the case: German

In Case C-126/03: action under Article 226 EC for failure to fulfil obligations, brought on 20 March 2003, between Commission of the European Communities (Agent: K. Wiedner) and Federal Republic of Germany (Agent: W.-D. Plessing assisted by H.-J. Prieß) — the Court (First Chamber), composed of: P. Jann (Rapporteur), President of the Chamber, A. Rosas, R. Silva de Lapuerta, K. Lenaerts and K. Schiemann, Judges; L.A. Geelhoed, Advocate General; H. von Holstein, Deputy Registrar, for the Registrar, has given a judgment on 18 November 2004, in which it:

1.

Declares that, as the contract for the transport of waste from the discharge points in the Donauwald region to the Munich-North thermal power station was awarded by the City of Munich in breach of the procedural rules laid down in Article 8 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, read in conjunction with Article 11(1) of that directive, the Federal Republic of Germany has failed to fulfil its obligations under that directive;

2.	Orders the Federal Republic of Germany to pay the costs.

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(1)  OJ C 146 of 21.6.2003.

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8.1.2005

EN

Official Journal of the European Union

C 6/13

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JUDGMENT OF THE COURT

(Third Chamber)

of 28 October 2004

in Case C-148/03 (reference for a preliminary ruling from the Oberlandesgericht München): Nürnberger Allgemeine Versicherungs AG v Portbridge Transport International BV (1)

(Brussels Convention - Articles 20 and 57(2) - Failure by the defendant to enter an appearance - Defendant domiciled in another Contracting State - Geneva Convention on the Contract for the International Carriage of Goods by Road - Conflict between conventions)

(2005/C 6/22)

Language of the case: German

In Case C-148/03: reference for a preliminary ruling pursuant to the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, made by the Oberlandesgericht München (Germany), by decision of 27 March 2003, received at the Court on 31 March 2003, in the proceedings between Nürnberger Allgemeine Versicherungs AG and Portbridge Transport International BV — the Court (Third Chamber), composed of: A. Rosas, President of the Chamber, R. Schintgen (Rapporteur) and N. Colneric, Judges; A. Tizzano, Advocate General; R. Grass, Registrar, has given a judgment on 28 October 2004, the operative part of which is as follows:

Article 57(2)(a) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic, by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic and by the Convention of 29 November 1996 on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, should be interpreted as meaning that the court of a Contracting State in which a defendant domiciled in another Contracting State is sued may derive its jurisdiction from a specialised convention to which the first State is a party as well and which contains specific rules on jurisdiction, even where the defendant, in the course of the proceedings in question, submits no pleas on the merits.

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(1)   OJ C 146 of 21.6.2003.

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8.1.2005

EN

Official Journal of the European Union

C 6/13

---

JUDGMENT OF THE COURT

(First Chamber)

of 11 November 2004

in Case C-171/03 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven): Maatschap Toeters, M.C. Verberk v Productschap Vee en Vlees (1)

(Beef and veal - Early marketing premium for calves - Time-limit for lodging premium applications - Rules for calculating time-limit - Validity of Regulation (EEC) No 3886/92)

(2005/C 6/23)

Language of the case: Dutch

In Case C-171/03: reference for a preliminary ruling under Article 234 EC from the College van Beroep voor het bedrijfsleven (Netherlands), made by decision of 13 April 2003, received at the Court on 14 April 2003, in the proceedings between Maatschap Toeters, M.C. Verberk, trading as ‘Verberk-Voeten’, and Productschap Vee en Vlees — the Court (First Chamber), composed of: P. Jann, President of the Chamber, A. Rosas (Rapporteur) and R. Silva de Lapuerta, Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, has given a judgment on 11 November 2004, in which it has ruled:

1.

(a) Article 3(2)(c) of Council Regulation (EEC, Euratom) No 1182/71 of 3 June 1971 determining the rules applicable to periods, dates and time-limits is to be interpreted as meaning that a period expressed in weeks, such as that laid down by Article 50a of Commission Regulation (EEC) No 3886/92 of 23 December 1992 laying down detailed rules for the application of the premium schemes provided for in Council Regulation (EEC) No 805/68 on the common organisation of the market in beef and repealing Regulations (EEC) No 1244/82 and (EEC) No 714/89, as amended by Commission Regulation (EC) No 2311/96 of 2 December 1996, ends with the expiry of the last hour of whichever day in the last week is the same day of the week as the day on which the slaughter took place. (b) When applying Article 50a of Regulation No 3886/92, a Member State may not establish the time at which a premium application was lodged pursuant to national procedural rules which apply within its national legal system to comparable, national periods for making applications. (c) Article 50a of Regulation No 3886/92 must be interpreted as meaning that a premium application may be regarded as having been ‘lodged’ in due time only if the competent authority received it prior to the expiry of the time-limit.

2.

Consideration of the question referred has disclosed nothing capable of affecting the validity of Article 50a(1) of Regulation No 3886/92 to the extent that it excludes the applicant from receiving the premium entirely whenever the period for making applications is exceeded, irrespective of how and by what extent.

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(1)  OJ C 146 of 21.6.2003.

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8.1.2005

EN

Official Journal of the European Union

C 6/14

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JUDGMENT OF THE COURT

(First Chamber)

of 18 November 2004

in Case C-284/03 (reference for a preliminary ruling from the Cour d'appel de Bruxelles): Etat belge v Temco Europe SA (1)

(Sixth VAT Directive - Article 13B(b) - Exempt transactions - Letting of immovable property - Licence to occupy)

(2005/C 6/24)

Language of the case: French

In Case C-284/03: reference for a preliminary ruling under Article 234 EC from the Cour d'appel de Bruxelles (Brussels Court of Appeal) (Belgium), by decision of 19 June 2003, received at the Court on 2 July 2003, in the proceedings between Etat belge and Temco Europe SA — the Court (First Chamber), composed of: P. Jann, President of the Chamber, A. Rosas (Rapporteur), R. Silva de Lapuerta, K. Lenaerts and S. von Bahr, Judges; D. Ruiz-Jarabo Colomer, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 18 November 2004, in which it has ruled:

Article 13B(b) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) must be interpreted as meaning that transactions by which one company, through a number of contracts, simultaneously grants associated companies a licence to occupy a single property in return for a payment set essentially on the basis of the area occupied and by which the contracts, as performed, have as their essential object the making available, in a passive manner, of premises or parts of buildings in return for a payment linked to the passage of time, are transactions comprising the ‘letting of immovable property’ within the meaning of that provision and not the provision of a service capable of being categorised in a different way.

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(1)  OJ C 213 of 6.9.2003.

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8.1.2005

EN

Official Journal of the European Union

C 6/14

---

JUDGMENT OF THE COURT

(Second Chamber)

of 28 October 2004

in Case C-357/03 Commission of the European Communities v Republic of Austria (1)

(Failure to fulfil obligations - Directive 98/24/EC - Protection of the health and safety of workers - Risks related to chemical agents at work - Failure to transpose throughout the territory of the Member State concerned within the prescribed period)

(2005/C 6/25)

Language of the case: German

In Case C-357/03 Commission of the European Communities (Agents: D. Martin and H. Kreppel) v Republic of Austria (Agent: E. Riedl) – action under Article 226 EC for failure to fulfil obligations, brought on 19 August 2003 – the Court (Second Chamber), composed of: C.W.A. Timmermanns (Rapporteur), President of the Chamber, C. Gulmann, J. Makarczyk, P. Kūris and J. Klučka, Judges; A. Tizzano, Advocate General; R. Grass, Registrar, gave a judgment on 28 October 2004, in which it:

1.

Declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply fully with Council Directive 98/24/EC of 7 April 1998 on the protection of the health and safety of workers from the risks related to chemical agents at work (14th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), the Republic of Austria has failed to fulfil its obligations under that directive;

2.	Orders the Republic of Austria to pay the costs.

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(1)  OJ C 264 of 1.11.2004.

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8.1.2005

EN

Official Journal of the European Union

C 6/15

---

JUDGMENT OF THE COURT

(Second Chamber)

of 28 October 2004

in Case C-360/03 Commission of the European Communities v Republic of Austria (1)

(Failure to fulfil obligations - Directive 2000/39/EC - Protection of the health and safety of workers - Risks related to chemical agents at work - Establishment of occupational exposure limit values - Failure to transpose throughout the territory of the Member State concerned within the prescribed period)

(2005/C 6/26)

Language of the case: German

In Case C-360/03 Commission of the European Communities (Agents: D. Martin and H. Kreppel) v Republic of Austria (Agent: E. Riedl) – action under Article 226 EC for failure to fulfil obligations, brought on 19 August 2003 – the Court (Second Chamber), composed of: C.W.A. Timmermanns (Rapporteur), President of the Chamber, C. Gulmann, J. Makarczyk, P. Kūris and J. Klučka, Judges; A. Tizzano, Advocate General; R. Grass, Registrar, gave a judgment on 28 October 2004, in which it:

1.

Declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply fully with Commission Directive 2000/39/EC of 8 June 2000 establishing a first list of indicative occupational exposure limit values in implementation of Council Directive 98/24/EC on the protection of the health and safety of workers from the risks related to chemical agents at work, the Republic of Austria has failed to fulfil its obligations under that directive;

2.	Orders the Republic of Austria to pay the costs.

---

(1)  OJ C 264 of 1.11.2003.

---

8.1.2005

EN

Official Journal of the European Union

C 6/15

---

JUDGMENT OF THE COURT

(Fourth Chamber)

of 28 October 2004

in Case C-421/03 Commission of the European Communities v Republic of Austria (1)

(Failure to fulfil obligations - Directive 2001/18/EC - Deliberate release of genetically modified organisms into the environment - Failure to transpose within the prescribed period)

(2005/C 6/27)

Language of the case: German

In Case C-421/03 Commission of the European Communities (Agent: U. Wölker) v Republic of Austria (Agent: E. Riedl) – action under Article 226 EC for failure to fulfil obligations, brought on the 3 October 2003 – the Court (Fourth Chamber), composed of: N. Colneric, acting for the President, J.N. Cunha Rodrigues and E. Levits (Rapporteur), Judges; J. Kokott, Advocate General; R. Grass, Registrar, gave a judgment on 28 October 2004, in which it:

1.

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC, the Republic of Austria has failed to fulfil its obligations under that directive;

2.	Orders the Republic of Austria to pay the costs.

---

(1)  OJ C 275 of 15.11.2003.

---

8.1.2005

EN

Official Journal of the European Union

C 6/16

---

JUDGMENT OF THE COURT

(Fourth Chamber)

of 18 November 2004

in Case C-422/03 Commission of the European Communities v Kingdom of the Netherlands (1)

(Failure of a Member State to fulfil its obligations - Directive 2001/18/EC - Failure to transpose within the prescribed period)

(2005/C 6/28)

Language of the case: Dutch

In Case C-422/03 Commission of the European Communities (Agent: M. van Beek) v Kingdom of the Netherlands (Agents: H.G. Sevenster and J. van Bakel) – action under Article 226 EC for failure to fulfil obligations, brought on 3 October 2003 – the Court (Fourth Chamber), composed of: J.N. Cunha Rodrigues, acting for the President of the Fourth Chamber, K, Schiemann (Rapporteur) and E. Juhász, Judges; P. Léger, Advocate General; R. Grass, Registrar, gave a judgment on 18 November 2004, in which it:

1.

Declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply with Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive;

2.	Orders the Kingdom of the Netherlands to pay the costs.

---

(1)  OJ C 275 of 15.11.2003.

---

8.1.2005

EN

Official Journal of the European Union

C 6/16

---

JUDGMENT OF THE COURT

(Fourth Chamber)

of 28 October 2004

in Case C-460/03: Commission of the European Communities v Ireland (1)

(Failure of a Member State to fulfil obligations - Directive 2000/53/EC - End-of-life vehicles - Failure to implement)

(2005/C 6/29)

Language of the case: English

In Case C-460/03: action under Article 226 EC for failure to fulfil obligations, brought on 31 October 2003, between Commission of the European Communities (Agents: X. Lewis and M. Konstantinidis) and Ireland (Agent: D. O'Hagan) - the Court (Fourth Chamber), composed of: J.N. Cunha Rodrigues, acting as President of the Fourth Chamber, E. Juhász and E. Levits (Rapporteur), Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, has given a judgment on 28 October 2004, in which it:

1.

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of life vehicles, Ireland has failed to fulfil its obligations under that directive and in particular Article 10(1) thereof;

2.	Orders Ireland to pay the costs.

---

(1)  OJ C 304 of 13.12.2003

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8.1.2005

EN

Official Journal of the European Union

C 6/16

---

JUDGMENT OF THE COURT

(Sixth Chamber)

of 18 November 2004

in Case C-482/03: Commission of the European Communities v Ireland (1)

(Failure of a Member State to fulfil obligations - Directive 2001/14/EC - The Community's railways - Allocation of infrastructure capacity, the levying of charges for the use of infrastructure and safety certification - Failure to transpose within the prescribed period)

(2005/C 6/30)

Language of the case: English

In Case C-482/03: action under Article 226 EC for failure to fulfil obligations, brought on 19 November 2003, between Commission of the European Communities (Agent: W. Wils) and Ireland (Agents: D. O'Hagan and D. Moloney, BL) — the Court (Sixth Chamber), composed of: J.-P. Puissochet, acting for the President of the Sixth Chamber, S. von Bahr and U. Lõhmus (Rapporteur), Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, has given a judgment on 18 November 2004, in which it:

1.

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification, Ireland has failed to fulfil its obligations under that directive;

2.	Orders Ireland to pay the costs.

---

(1)  OJ C 7 of 10.1.2004.

---

8.1.2005

EN

Official Journal of the European Union

C 6/17

---

JUDGMENT OF THE COURT

(Fourth Chamber)

of 28 October 2004

in Case C-497/03 Commission of the European Communities v Republic of Austria (1)

(Failure to fulfil obligations - Article 28 EC - Measures having equivalent effect - Sale of food supplements by mail order - Prohibition)

(2005/C 6/31)

Language of the case: German

In Case C-497/03 Commission of the European Communities (Agents: J.C. Schieferer and B. Schima) v Republic of Austria (Agent: E. Riedl) — action under Article 226 EC for failure to fulfil obligations, brought on 24 November 2003 — the Court (Fourth Chamber), composed of: K. Lenaerts, President of the Chamber, J.N. Cunha Rodrigues and M. Ilešič (Rapporteur), Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, gave a judgment on 28 October 2004, in which it:

1.	Declares that, by prohibiting under Paragraph 50(2) of the Gewerbeordnung the sale of food supplements by mail order, the Republic of Austria has failed to fulfil its obligations under Article 28 EC;

2.	Orders the Republic of Austria to pay the costs.

---

(1)  OJ C 21 of 24.1.2004.

---

8.1.2005

EN

Official Journal of the European Union

C 6/17

---

JUDGMENT OF THE COURT

(Fourth Chamber)

of 28 October 2004

in Case C-505/03 Commission of the European Communities v French Republic (1)

(Failure to fulfil obligations - Quality of water intended for human consumption - Directive 80/778/EEC)

(2005/C 6/32)

Language of the case: French

In Case C-505/03 Commission of the European Communities (Agents: G. Valero Jordana and F. Simonetti) v French Republic (Agents: G. de Bergues and C. Mercier) – action under Article 226 EC for failure to fulfil obligations, brought on 28 November 2003 – the Court (Fourth Chamber), composed of: J.N. Cunha Rodrigues, acting for the President of the Fourth Chamber, E. Juhász (Rapporteur) and M. Ilešič, Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, gave a judgment on 28 October 2004, in which it:

1.

Declares that, by failing to comply with the requirements of Council Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption with regard to the nitrate content of water intended for human consumption in Brittany, the French Republic has failed to fulfil its obligations under Article 7(6) and Annex I of that directive;

2.	Orders the French Republic to pay the costs.

---

(1)  OJ C 21 of 24.1.2004.

---

8.1.2005

EN

Official Journal of the European Union

C 6/18

---

JUDGMENT OF THE COURT

(Fourth Chamber)

of 28 October 2004

in Case C-4/04 Commission of the European Communities v Republic of Austria (1)

(Failure of a Member State to fulfil its obligations - Directive 98/44/EC - Legal protection of biotechnological inventions - Failure to transpose within the prescribed period)

(2005/C 6/33)

Language of the case: German

In Case C-4/04 Commission of the European Communities (Agents: K. Banks and C. Schmidt) v Republic of Austria (Agent: H. Dossi) — action under Article 226 EC for failure to fulfil obligations, brought on 8 January 2004 — the Court (Fourth Chamber), composed of: J.N. Cunha Rodrigues, acting for the President of the Fourth Chamber, K. Schiemann and M. Ilešič (Rapporteur), Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, gave a judgment on 28 October 2004, in which it:

1.

Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions, the Republic of Austria has failed to fulfil its obligations under that directive;

2.	Orders the Republic of Austria to pay the costs.

---

(1)  OJ C 47 of 21.2.2004.

---

8.1.2005

EN

Official Journal of the European Union

C 6/18

---

JUDGMENT OF THE COURT

(Fourth Chamber)

of 28 October 2004

in Case C-5/04 Commission of the European Communities v Federal Republic of Germany (1)

(Failure of a Member State to fulfil its obligations - Directive 98/44/EC - Legal protection of biotechnological inventions - Failure to transpose within the prescribed period)

(2005/C 6/34)

Language of the case: German

In Case C-5/04 Commission of the European Communities (Agents: K. Banks and C. Schmidt) v Federal Republic of Germany (Agent: M. Lumma) – action under Article 226 EC for failure to fulfil obligations, brought on 9 January 2004 – the Court (Fourth Chamber), composed of: J.N. Cunha Rodrigues, acting for the President of the Fourth Chamber, K. Schiemann and M. Ilešič (Rapporteur), Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, gave a judgment on 28 October 2004, in which it:

1.

Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions, the Federal Republic of Germany has failed to fulfil its obligations under that directive;

2.	Orders the Federal Republic of Germany to pay the costs.

---

(1)  OJ C 47 of 21.2.2004.

---

8.1.2005

EN

Official Journal of the European Union

C 6/18

---

JUDGMENT OF THE COURT

(Fifth Chamber)

of 18 November 2004

in Case C-78/04 Commission of the European Communities v Republic of Austria (1)

(Failure of a Member State to fulfil its obligations - Directive 96/61/EC - Integrated pollution prevention and control)

(2005/C 6/35)

Language of the case: German

In Case C-78/04 Commission of the European Communities (Agents: U. Wölker and M. Konstantinidis) v Republic of Austria (Agent: E. Riedl) – action under Article 226 EC for failure to fulfil obligations, brought on 18 February 2004 – the Court (Fifth Chamber), composed of: C. Gulmann, acting for the President of the Fifth Chamber, R. Schintgen and P. Kūris (Rapporteur), Judges; J. Kokott, Advocate General; R. Grass, Registrar, gave a judgment on 18 November 2004, in which it:

1.

Declares that, by failing: — completely to transpose the definition of ‘existing installation’ under Article 2(4) of Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control in the Gewerbeordnung 1994 (Crafts, Trade and Industry Code 1994) in the version brought into force by Bundesgesetz BGBl.I,88/2000 and which came into effect on 1 September 2000; — completely to transpose the requirements relating to permit conditions laid down in Article 9(4) of that directive in the Gewerbeordnung 1994, as amended, and the requirements laid down in Article 9(3) to (5) of that directive in the Niederösterreichisches Elektrizitätswesengesetz 2001 (‘NÖ EwG 2001’); — completely to transpose Annex IV to that directive in the Gewerbeordnung 1994, as amended, and in the NÖ EwG 2001; — to transpose that directive as regards the combustion installations referred to in point 1.1 of Annex I to the directive in the Gewerbeordnung 1994, as amended, and in the Salzburger Abfallwirtschaftsgesetz 1998; — completely to transpose Directive 96/61 in the Burgenländisches Elektrizitätswesengesetz 1999, and — to transpose the provisions of that directive relating to intensive rearing installations referred to in point 6.6. of Annex I to the directive in the legislation of the Länder of Burgenland, Salzburg and the Tyrol, the Republic of Austria has failed to fulfil its obligations under Articles 2(4), 9(3) to (5) of and Annex IV to the abovementioned directive, and under Article 1 of that directive, read in conjunction with points 1.1 and 6.6 of Annex I to the directive;

2.	Orders the Republic of Austria to pay the costs.

---

(1)  OJ C 94 of 17.4.2004.

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8.1.2005

EN

Official Journal of the European Union

C 6/19

---

JUDGMENT OF THE COURT

(Fifth Chamber)

of 18 November 2004

in Case C-79/04 Commission of the European Communities v Grand Duchy of Luxembourg (1)

(Failure of a Member State to fulfil its obligations - Directive 2002/40/EC - Failure to transpose within the prescribed period)

(2005/C 6/36)

Language of the case: French

In Case C-79/04 Commission of the European Communities (Agents: M. Patakia and B. Schima) v Grand Duchy of Luxemboug (Agent: S. Schreiner) – action under Article 226 EC for failure to fulfil obligations, brought on 19 February 2004 – the Court (Fifth Chamber), composed of: R. Silva de Lapuerta, President of the Chamber, C. Gulmann and J. Makarczyk (Rapporteur), Judges; P. Léger, Advocate General; R. Grass, Registrar, gave a judgment on 18 November 2004, in which it:

1.

Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Commission Directive 2002/40/EC of 8 May 2002 implementing Council Directive 92/75/EEC with regard to energy labelling of household electric ovens, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

2.	Orders the Grand Duchy of Luxembourg to pay the costs.

---

(1)  OJ C 85 of 3.4.2004.

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8.1.2005

EN

Official Journal of the European Union

C 6/19

---

JUDGMENT OF THE COURT

(Fourth Chamber)

of 18 November 2004

in Case C-116/04 Commission of the European Communities v Kingdom of Sweden (1)

(Failure of a Member State to fulfil its obligations - Directive 2001/17/EC - Reorganisation and winding up of insurance undertakings - Failure to transpose within the prescribed period)

(2005/C 6/37)

Language of the case: Swedish

In Case C-116/04 Commission of the European Communities (Agents: E. Traversa and K. Simonsson) v Kingdom of Sweden (Agent: A. Kruse) – action under Article 226 EC for failure to fulfil obligations, brought on 4 March 2004 – the Court (Fourth Chamber), composed of: J.N. Cunha Rodrigues, acting for the President of the Fourth Chamber, M. Ilešič (Rapporteur) and E. Levits, Judges; L.A. Gellhoed, Advocate General; R. Grass, Registrar, gave a judgment on 18 November 2004, in which it:

1.

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/17/EC of the European Parliament and of the Council of 19 March 2001 on the reorganisation and winding-up of insurance undertakings, the Kingdom of Sweden has failed to fulfil its obligations under that directive;

2.	Orders the Kingdom of Sweden to pay the costs.

---

(1)  OJ C 106 of 30.4.2004.

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8.1.2005

EN

Official Journal of the European Union

C 6/20

---

JUDGMENT OF THE COURT

(Sixth Chamber)

of 18 November 2004

in Case C-143/04 Commission of the European Communities v Kingdom of Belgium (1)

(Failure of a Member State to fulfil its obligations - Directive 2001/29/EC - Harmonisation of certain aspects of copyright and related rights in the information society - Failure to transpose within the prescribed period)

(2005/C 6/38)

Language of the case: French

In Case C-143/04 Commission of the European Communities (Agent: K. Banks) v Kingdom of Belgium (Agent: A. Goldmann) – action under Article 226 EC for failure to fulfil obligations, brought on 17 March 2004 – the Court (Sixth Chamber), composed of: J.-P Puissochet, acting for the President of the Sixth Chamber, S. von Bahr and J. Malenovský (Rapporteur), Judges; J. Kokott, Advocate General; R. Grass, Registrar, gave a judgment on 18 November 2004, in which it:

1.

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

2.	Orders the Kingdom of Belgium to pay the costs.

---

(1)  OJ C 106 of 30.4.2004.

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8.1.2005

EN

Official Journal of the European Union

C 6/20

---

JUDGMENT OF THE COURT

(Fourth Chamber)

of 18 November 2004

in Case C-164/04: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (1)

(Failure by a Member State to fulfil its obligations - Directive 2001/17/EC - Reorganisation and winding-up of insurance undertakings - Failure to transpose within the prescribed period)

(2005/C 6/39)

Language of the case: English

In Case C-164/04: action for failure to fulfil obligations under Article 226 EC, brought on 31 March 2004, between Commission of the European Communities (Agents: E. Traversa and M. Shotter) and United Kingdom of Great Britain and Northern Ireland (Agent: C. Jackson) — the Court (Fourth Chamber), composed of: J.N. Cunha Rodrigues, acting for the President of the Fourth Chamber, M. Ilešič (Rapporteur) and E. Levits, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, has given a judgment on 18 November 2004, the operative part of which is as follows:

1.

By not adopting the laws, regulations and administrative measures necessary to comply with Directive 2001/17/EC of the European Parliament and of the Council of 19 March 2001 on the reorganisation and winding-up of insurance undertakings, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive.

2.	The United Kingdom of Great Britain and Northern Ireland is ordered to pay the costs.

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(1)  OJ C 106 of 30.4.2004.

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8.1.2005

EN

Official Journal of the European Union

C 6/21

---

ORDER OF THE COURT

(Fourth Chamber)

of 22 June 2004

in Case C-151/03 P: Karl L. Meyer against the Commission of the European Communities (1)

(Appeal - Action for damages - Compensation for losses suffered due to maladministration by the Commission - Application of the decisions relating to the association of the OCTs)

(2005/C 6/40)

Language of the case: French

In Case C-151/03P: Karl L. Meyer, residing at Uturoa (Island of Raiatea, French Polynesia) (lawyer: J.-D. des Arcis) the other party to the proceedings being the Commission of the European Communities (Agents: M.-J. Jonczy and M.B. Martenczuk) – appeal against the judgment of the Court of First Instance of the European Communities (Third Chamber) of 13 February 2003 in Case T-333/01 Meyer v Commission [2003] ECR II-117, asking for that judgment to be set aside – the Court (Fourth Chamber), composed of J. N. Cunha-Rodrigues, President of the Chamber, N. Colneric (Rapporteur) and K. Schiemann, Judges; Advocate General: A. Tizzano, Registrar: R. Grass, has given an order on 22 June 2004, in which it:

1)	Dismisses the action;

2)	Orders Mr Meyer to pay the costs.

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(1)  OJ C 112 of 10.5.2003.

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8.1.2005

EN

Official Journal of the European Union

C 6/21

---

ORDER OF THE COURT

(Sixth Chamber)

of 5 October 2004

in Case C-192/03 P: Alcon Inc. against the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM), Dr Robert Winzer Pharma GmbH (1)

(Appeal - Community mark - Regulation (EC) No 40/94 - Nullity of the Community mark - Article 51 of Regulation No 40/94 - Absolute grounds for refusal of registration - Article 7(1)(d) of Regulation No 40/94 - Distinctive character acquired through use - Article 7(3) of Regulation No 40/94 - Word mark ‘BSS’)

(2005/C 6/41)

Language of the case: English

In Case C-192/03P: Alcon Inc., formerly Alcon Universal Ltd, established in Hünenberg (Switzerland) (lawyers: C. Morcom, QC, and S. Clark), the other parties to the proceedings being the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: S. Laitinen and A. Sesma Merino) and Dr Robert Winzer Pharma GmbH, established in Olching (Germany) (lawyer: S. Schneller) – appeal under Article 56 of the Statute of the Court of Justice, brought on 2 May 2003 – the Court (Sixth Chamber), composed of J.-P. Puissochet (Rapporteur), President of the Chamber, F. Macken and U. Lõhmus, Judges; Advocate General: M. Poiares Maduro, Registrar: R. Grass, has given an order on 5 October 2004, in which it:

1)	Dismisses the action;

2)	Orders Alcon Inc. to pay the costs.

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(1)  OJ C 158 of 5.7.2003.

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8.1.2005

EN

Official Journal of the European Union

C 6/22

---

ORDER OF THE COURT

(Sixth Chamber)

of 12 October 2004

in Case C-352/03 P: Pietro Del Vaglio against the Commission of the European Communities (1)

(Appeal - Community officials - Pensions - Change of country of residence - Applicable corrective coefficient - Appeal partly manifestly inadmissible and partly manifestly unfounded)

(2005/C 6/42)

Language of the case: French

In Case C-352/03P: Pietro Del Vaglio, former official of the Commission of the European Communities, residing in London (United Kingdom) (lawyers: M. Famchon and B. Desrez), the other party to the proceedings being the Commission of the European Communities (Agent: J. Currall, assisted by D. Waelbroeck) – appeal under Article 56 of the Statute of the Court of Justice, brought on 11 August 2003 – the Court (Sixth Chamber), composed of A. Borg Barthet, President of the Chamber, J.-P. Puissochet and S. von Bahr (Rapporteur), Judges; Advocate General: J. Kokott, Registrar: R. Grass, has given an order on 12 October 2004, in which it:

1)	Dismisses the action;

2)	Orders Mr Del Vaglio to pay the costs.

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(1)  OJ C 251 of 18.10.2003.

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8.1.2005

EN

Official Journal of the European Union

C 6/22

---

ORDER OF THE COURT

(Fifth Chamber)

of 1 October 2004

in Case C-480/03 (reference for a preliminary ruling from the Cour d'arbitrage): Hugo Clemens, b.v.b.a. Valkaniersgilde against the Walloon region, Council of Ministers (1)

(Article 104(3) of the Rules of Procedure - Directive 79/409/EEC - Conservation of wild birds - Species born and reared in captivity)

(2005/C 6/43)

Languages of the case: French and Dutch

In Case C-480/03: Hugo Clemens, b.v.b.a. Valkaniersgilde v Walloon region, Council of Ministers – reference for a preliminary ruling under Article 234 EC by the Cour d'arbitrage (Belgium), by judgment of 29 October 2003, received at the Court on 18 November 2003 – the Court (Fifth Chamber), composed of C. Gulmann, President of the Chamber, R. Silva de Lapuerta (Rapporteur) and J. Makarczyk, Judges; Advocate General: J. Kokott, Registrar: R. Grass, has given an order on 1 October 2004 in which it:

Declares that Council Directive 79/409/EEC of 2 April on the conservation of wild birds is to be interpreted as not being applicable to species born and reared in captivity and, accordingly, Member States remain competent, as Community law now stands, to regulate the matter, subject to Articles 28 to 30 EC.

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(1)  OJ C 35 of 7.2.2004.

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8.1.2005

EN

Official Journal of the European Union

C 6/22

---

Action brought on 29 September 2004 by the Commission of the European Communities against Ireland

(Case C-418/04)

(2005/C 6/44)

Language of procedure: English

An action against Ireland was brought before the Court of Justice of the European Communities on 29 September 2004 by the Commission of the European Communities, represented by Barry Doherty and Michel van Beek, acting as agents, with an address for service in Luxembourg.

The Commission requests the Court to:

1.

declare that Ireland, by failing a) to classify, since 1981, in accordance with Article 4(1) and (2) of Directive 79/409/EEC on the conservation of wild birds, (1) all the most suitable territories in number and size for the species of Annex I of Directive 79/409/EEC as well as regularly occurring migratory species; b) to establish, since 1981, in accordance with Article 4(1) and (2) of Directive 79/409/EEC, the necessary legal protection regime for these territories; c) to ensure that, since 1981, the provisions of Article 4(4), first sentence are applied to areas requiring classification as special protection areas under Directive 79/409/EEC; d) to fully and correctly transpose and apply the requirements of the second sentence of Article 4(4) of Directive 79/409/EEC; e) in respect of classified special protection areas under Directive 79/409/EEC, to take all the measures necessary to comply with the provisions of Article 6(2), (3) and (4) of Directive 92/43/EEC on the conservation of natural habitats and of wild flora and fauna (2), and, in respect of recreational use of all sites intended to be subject to Article 6(2) of Directive 92/43/EEC, to take all the necessary measures to comply with the provisions of the said Article 6(2); f) to take all the measures necessary to comply with Article 10 of Directive 79/409/EEC, has failed to comply with its obligations under those Articles of the said Directives; and

2)	order Ireland to pay the costs.

Pleas in law and main arguments:

This case concerns the failure by Ireland to comply with certain obligations laid down in directive 79/409/EEC and directive 92/43/EEC. The Commission submits that:

Since 1981, Ireland has failed to classify in accordance with article 4(1) and (2) of directive 79/409/EEC on the conservations of wild birds, (hereinafter ‘the birds directive’) all the most suitable territories in number and size for the species of Annex I of the directive as well as regularly occurring migratory species. This has two aspects. First of all, there has been an omission to make any classification in respect of certain sites (‘non-classification’). Secondly, there has been a failure to fully classify other sites (‘partial classification’). In terms of territorial coverage, the combined effect of non-classification and partial classification left Ireland with the second smallest SPA network of any Member State before the accessions that took place on 1 May 2004.

Ireland has failed to establish the necessary legal protection regime for SPAs in accordance with article 4(1) and (2) of the birds directive. The scope of the relevant Irish legislation is limited to what might be termed preventive measures, i.e. measures which seek to address threats to habitats and disturbances of wild birds arising from human interventions. Quite apart from the inherent flaws in these preventive measures, the Commission contends that the requisite legal protection regime required by article 4(1) and (2) is larger in scope and that ensuring the survival and reproduction of bird species within SPAs may require more than efforts to restrain negative human interventions.

While there is Irish legislation of relevance to habitat protection outside of classified SPAs, this lacks the specificity required by the birds directive in respect of Article 4(4), first sentence. In particular, the Irish legislation fails to impose any specific duties in respect of the habitats of the wild bird species which should benefit from SPA protection in areas not covered by Ireland's existing SPA network.

There is no specific set of provisions implementing the second sentence of Article 4(4) which provides that Member States shall ‘strive to avoid pollution or deterioration of habitats’ outside classified areas. Many activities which destroy habitats are not subject to any meaningful form of statutory control.

Directive 92/43/EEC (‘the habitats directive’) was required to be implemented from 10 June 1994. This means that Ireland should have transposed and applied the provisions of articles 6(2) to (4) to all SPAs classified under article 4(1) of the birds directive or recognised under article 4(2) of the same directive on or after that date.

The Commission considers that Ireland has not transposed or applied article 6(2) of the habitats directive.

The adoption of national measures to implement article 10 of the birds directive is necessary to ensure that the directive is fully effective. By not reflecting in the relevant statutory provisions the obligation to encourage research, Ireland has failed to implement article 10.

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(1)  OJ L 103, 25.04.1979, p. 1.

(2)  OJ L 206, 22.07.1992, p. 7.

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8.1.2005

EN

Official Journal of the European Union

C 6/24

---

Action brought on 5 October 2004 by the Commission of the European Communities against the Hellenic Republic

(Case C-427/04)

(2005/C 6/45)

Language of the case: Greek

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 5 October 2004 by the Commission of the European Communities, represented by Wouter Wils and Georgios Zavvos, members of the Commission's Legal Service.

The applicant claims that the Court should:

1)

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/16/EC of the European Parliament and of the Council of 19 March 2001 on the interoperability of the trans-European conventional rail system (1), and in any event by failing to inform the Commission thereof, the Hellenic Republic has failed to fulfil its obligations under that directive.

2)	order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing the directive into national law expired on 20 April 2003.

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(1)  OJ L 110, 20.4.2001, p. 1.

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8.1.2005

EN

Official Journal of the European Union

C 6/24

---

Reference for a preliminary ruling by the Cour d'Appel de Bruxelles, 9ème Chambre, by judgment of that court of 14 October 2004 in the case of Mobistar SA against Institut belge des services postaux et des télécommunications, joined parties, Belgacom Mobile SA and Base SA

(Case C-438/04)

(2005/C 6/46)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by judgment of the Cour d'Appel de Bruxelles, 9ème Chambre, (Court of Appeal, Brussels, Ninth Chamber) (Belgium) of 14 October 2004 received at the Court Registry on 19 October 2004, for a preliminary ruling in the case of Mobistar SA against Institut belge des services postaux et des telecommunications, joined parties, Belgacom Mobile SA and Base SA on the following questions:

With regard to the number portability facility provided for in Article 30 of Directive 2002/22/EC (1) (Universal Service Directive):

1.

Does Article 30(2) of the Universal Service Directive, which provides that national regulatory authorities are to ensure that pricing for interconnection related to the provision of number portability is cost-oriented, refer only to costs related to traffic to the ported number, or does it also refer to tariffs of costs incurred by operators in executing requests for number porting?

2.

If Article 30(2) of the directive refers only to interconnection costs related to traffic to the ported number, must it be interpreted: (a) as leaving operators free to negotiate the commercial conditions for the facility and as prohibiting Member States from imposing ex ante commercial conditions on undertakings obliged to provide the number portability facility in respect of the services provided in relation to the execution of a request for porting? (b) as not prohibiting Member States from imposing ex ante commercial conditions in respect of that facility on operators which have been designated as having significant market power in a particular market?

3.

If Article 30(2) of the directive must be interpreted as imposing on all operators the obligation of cost orientation in respect of the costs of number porting, must it be interpreted as precluding: (a) a national regulatory measure imposing a specific method of calculation for the calculation of the costs in question? (b) a national measure which fixes ex ante the allocation of the costs between the operators? (c) a national measure which empowers the national regulatory authority to fix ex ante for all operators and for a given period the maximum amount of the charges which the donor operator may claim from the recipient operator? (d) a national measure which grants to the donor operator the right to apply the tariff set by the national regulatory authority, relieving that operator of the obligation to prove that the tariff which it applies is oriented to its own costs?

With regard to the right of appeal provided for by Article 4 of Directive 2002/21/EC (2) (Framework Directive):

Must Article 4(1) of the Framework Directive be interpreted as meaning that the authority designated to hear and determine appeals must be able to have at its disposal all the information necessary for the merits of the case to be duly taken into account, including the confidential information on the basis of which the national regulatory authority adopted the decision which is the subject-matter of the appeal?

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(1)  Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive) (OJ L 108 of 24.4.2002 p. 51).

(2)  Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ L 108 of 24.4.2002 p. 33).

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8.1.2005

EN

Official Journal of the European Union

C 6/25

---

Reference for a preliminary ruling by the Belgian Cour de Cassation (1st Chamber) by decision of that court of 7 October 2004 in the case of Axel Kittel against Belgian State

(Case C-439/04)

(2005/C 6/47)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by order of the Belgian Cour de Cassation (Court of Cassation) (1st Chamber) of 7 October 2004, received at the Court Registry on 19 October 2004, for a preliminary ruling in the case of Axel Kittel against the Belgian State on the following questions:

1.

Where the recipient of a supply of goods is a taxable person who has entered into a contract in good faith without knowledge of a fraud committed by the seller, does the principle of fiscal neutrality in respect of value added tax mean that the fact that the contract of sale is void, by reason of a rule of domestic civil law which renders the contract incurably void as contrary to public policy on the ground of illegal basis of the contract attributable to the seller, cannot cause that taxable person to lose his right to deduct that tax?

2.	Is the answer different where the contract is incurably void for fraudulent evasion of VAT itself?

3.	Is the answer different where the unlawful basis of the contract of sale which renders it incurably void under domestic law is a fraudulent evasion of value added tax known to both parties to the contract?

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8.1.2005

EN

Official Journal of the European Union

C 6/25

---

Reference for a preliminary ruling by the Belgian Cour de Cassation (1st Chamber) by decision of that court of 7 October 2004 in the case of the Belgian State against Recolta Recycling s.p.r.l.

(Case C-440/04)

(2005/C 6/48)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by order of the Belgian Cour de Cassation (Court of Cassation) (1st Chamber) of 7 October 2004, received at the Court Registry on 19 October 2004, for a preliminary ruling in the case of the Belgian State against Recolta Recycling s.p.r.l. on the following questions:

1.

Where the recipient of a supply of goods is a taxable person who has entered into a contract in good faith without knowledge of a fraud committed by the seller, does the principle of fiscal neutrality in respect of value added tax mean that the fact that the contract of sale is void, by reason of a rule of domestic civil law which renders the contract incurably void as contrary to public policy on the ground of illegal basis of the contract attributable to the seller, cannot cause that taxable person to lose his right to deduct that tax?

2.	Is the answer different where the contract is incurably void for fraudulent evasion of VAT itself?

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8.1.2005

EN

Official Journal of the European Union

C 6/26

---

Reference for a preliminary ruling by the Hoge Raad der Nederlanden by order of that court of 15 October 2004 in the case of H. A. Solleveld against Inspecteur van de Belastingdienst — ondernemingen Amersfoort

(Case C-443/04)

(2005/C 6/49)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the Hoge Raad der Nederlanden (Netherlands Supreme Court), Third Chamber (Netherlands) of 15 October 2004 received at the Court Registry on 20 October 2004, for a preliminary ruling in the case of H. A. Solleveld against Inspecteur van de Belastingdienst — ondernemingen Amersfoort on the following question:

Must Article 13(A)(1)(c) of the Sixth Directive (1) be construed as meaning that exemption from VAT is conferred in respect of interventions comprising the establishment of a diagnosis, the provision of therapeutic advice and possible provision of treatment, in the framework of the diagnostic treatment described in paragraphs 3.1.2 and 3.1.3 above, even where those interventions cannot be subsumed within the exercise, by the person carrying out those interventions, of a medical or paramedical profession as defined by the Member State concerned?

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(1)  OJ L 145 of 16.6.1977, p. 1.

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8.1.2005

EN

Official Journal of the European Union

C 6/26

---

Reference for a preliminary ruling by the Hoge Raad der Nederlanden by order of that court of 15 October 2004 in the case of J.E. van den Hout-van Ejnsbergen against Inspecteur van de Belastingdienst — ondernemingen Leiden

(Case C-444/04)

(2005/C 6/50)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the Hoge Raad der Nederlanden (Netherlands Supreme Court), Third Chamber (Netherlands) of 15 October 2004 received at the Court Registry on 20 October 2004, for a preliminary ruling in the case of J.E. van den Hout-van Ejnsbergen against Inspecteur van de Belastingdienst — ondernemingen Leiden on the following question:

Must Article 13(A)(1)(c) of the Sixth Directive (1) be construed as meaning that psychotherapeutic treatments provided by a person carrying on a profession who satisfies the legal requirements for registration listed in paragraph 3.1, and is registered in the Register of Psychotherapists, are exempt from VAT, even where those interventions cannot be subsumed within the exercise, by the person carrying out those interventions, of a medical or paramedical profession as defined by the Member State concerned?

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(1)  OJ L 145 of 13.6.1977, p. 1.

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8.1.2005

EN

Official Journal of the European Union

C 6/26

---

Reference for a preliminary ruling by the High Court of Justice (England & Wales), Chancery Division, by order of that court dated 13 October 2004, in the case of Test Claimants in the FII Group Litigation against Commissioners of Inland Revenue

(Case C-446/04)

(2005/C 6/51)

Language of procedure: English

Reference has been made to the Court of Justice of the European Communities by order of the High Court of Justice (England & Wales), Chancery Division, dated 13 October 2004, which was received at the Court Registry on 22 October 2004, for a preliminary ruling in the case of Test Claimants in the FII Group Litigation and Commissioners of Inland Revenue on the following questions:

1.

Is it contrary to Article 43 or 56 EC for a Member State to keep in force and apply measures which exempt from corporation tax dividends received by a company resident in that Member State (‘the resident company’) from other resident companies and which subject dividends received by the resident company from companies resident in other Member States (‘non-resident companies’) to corporation tax (after giving double taxation relief for any withholding tax payable on the dividend and, under certain conditions, for the underlying tax paid by the non-resident companies on their profits in their country of residence)?

2.

Where a Member State has a system which in certain circumstances imposes advance corporation tax (‘ACT’) on the payment of dividends by a resident company to its shareholders and grants a tax credit to shareholders resident in that Member State in respect of those dividends, is it contrary to Article 43 or 56 EC or Article 4(1) or 6 of Council Directive 90/435/EEC (1) for the Member State to keep in force and apply measures which provide for the resident company to pay dividends to its shareholders without being liable to pay ACT to the extent that it has received dividends from companies resident in that Member State (either directly or indirectly through other companies resident in that Member State) and do not provide for the resident company to pay dividends to its shareholders without being liable to pay ACT to the extent that it has received dividends from non-resident companies?

3.

Is it contrary to the provisions of EC law referred to in Question 2 above for the Member State to keep in force and apply measures which provide for the ACT liability to be set against the liability of the dividend-paying company, and that of other companies in the group resident in that Member State, to corporation tax in that Member State upon their profits: a. but which do not provide for any form of set off of the ACT liability or some equivalent relief (such as the refund of ACT) in respect of profits earned, whether in that State or in other Member States, by companies in the group which are not residents in that Member State; and/or b. which provide that any double tax relief which a company resident in that Member State enjoys reduces the liability to corporation tax against which the ACT liability can be set?

4.

Where the Member State has measures which in certain circumstances provide for resident companies, if they so elect, to recover the ACT paid on distributions to their shareholders to the extent that distributions are received by the resident companies from non resident companies (including for this purpose companies resident in third countries), is it contrary to Article 43 or 56 EC or Article 4(1) or 6 of Council Directive 90/435/EEC for those measures: a. to oblige the resident companies to pay ACT and to reclaim it subsequently; and b. not to provide for the shareholders of the resident companies to receive a tax credit which they would have received on a dividend from a resident company which had not itself received dividends from non- resident companies?

5.

Where, prior to 31 December 1993, a Member State adopted the measures outlined in Questions 1 and 2, and after that date it adopted the further measures outlined in Question 4, and if the latter measures constitute a restriction prohibited by Article 56 of the EC Treaty, is that restriction to be taken to be a new restriction not already existing on the 31 December 1993?

6.

In the event of any of the measures set out in Questions 1 to 5 being in breach of any of the Community provisions referred to herein, then in circumstances where the resident company or other companies in the same group of companies make the following claims in respect of the relevant breaches: (i) a claim for the repayment of corporation tax unlawfully levied in the circumstances to which Question 1 relates; (ii) a claim for the reinstatement (or compensation for the loss) of reliefs applied against the corporation tax unlawfully levied in the circumstances to which Question 1 relates; (iii) a claim for repayment of (or compensation for) ACT which could not be set off against the company's corporation tax liability or otherwise relieved and which would not have been paid (or would have been relieved) but for the breach; (iv) a claim, where the ACT has been set off against corporation tax, for loss of use of money between the date of payment of the ACT and such set-off; (v) a claim for repayment of corporation tax paid by the company or by another group company where any of those companies incurred a corporation tax liability by disclaiming other reliefs in order to allow its ACT liability to be set off against its corporation tax liability (the limits imposed on set-off of ACT resulting in a residual corporation tax liability); (vi) a claim for loss of use of money due to corporation tax having been paid earlier than would otherwise have been the case or for reliefs subsequently lost in the circumstances set out in (v) above; (vii) a claim by the resident company for payment of (or compensation for) surplus ACT which that company has surrendered to another company in the group and which remained unrelieved when that other company was sold, demerged or went into liquidation; (viii) a claim, where ACT has been paid but subsequently reclaimed under the provisions described in Question 4, for loss of use of money between the date of payment of the ACT and the date on which it was reclaimed; (ix) a claim for compensation where the resident company elected to reclaim the ACT under the arrangements described in Question 4 and compensated its shareholders for the inability to receive a tax credit by increasing the amount of the dividend, in respect of each of those claims set out above, is it to be regarded as:   a claim for repayment of sums unduly levied which arise as a consequence of, and adjunct to, the breach of the abovementioned Community provisions; or   a claim for compensation or damages such that the conditions set out in Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur and Factortame must be satisfied; or   a claim for payment of an amount representing a benefit unduly denied?

7.

In the event that the answer to any part of Question 6 is that the claim is a claim for payment of an amount representing a benefit unduly denied: (a) is such a claim a consequence of, and an adjunct to, the right conferred by the abovementioned Community provisions; or (b) must the conditions for recovery laid down in Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur and Factortame be satisfied; or (c) must some other conditions be met?

8.	Does it make any difference to the answers to Questions 6 or 7 whether as a matter of domestic law the claims referred to in Question 6 are brought as restitutionary claims or are brought or have to be brought as claims for damages?

9.

What guidance, if any, does the Court of Justice think it appropriate to provide in the present case as to which circumstances the national court ought to take into consideration when it comes to determine whether there is a sufficiently serious breach within the meaning of the judgment in Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur and Factortame, in particular as to whether, given the state of the case law of the Court of Justice on the interpretation of the relevant Community provisions, the breach was excusable or as to whether in any particular case there is a sufficient causal link to constitute a ‘direct causal link’ within the meaning of that judgment?

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(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, 20.8.1990, p. 6).

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8.1.2005

EN

Official Journal of the European Union

C 6/28

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Reference for a preliminary ruling by the Verwaltungsgericht, Frankfurt am Main by order of that court of 11 October 2004 in the case of Fidium Finanz AG against Bundesanstalt für Finanzdienstleistungsaufsicht

(Case C-452/04)

(2005/C 6/52)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Verwaltungsgericht (Administrative Court), Frankfurt am Main (Germany) of 11 October 2004 received at the Court Registry on 27 October 2004, for a preliminary ruling in the case of Fidium Finanz AG against Bundesanstalt für Finanzdienstleistungsaufsicht on the following questions:

1.

Can an undertaking having its registered office in a country outside the European Union, in this case Switzerland, rely on the freedom of movement of capital under Article 56 EC in respect of the commercial grant of credit to residents of a Member State of the European Union, in this case the Federal Republic of Germany, as against that Member State and the measures taken by its authorities or courts, or are the preparation, provision and performance of such financial services covered solely by the freedom to provide services under Article 49 et seq. EC?

2.

Can an undertaking having its registered office in a country outside the European Union rely on the freedom of movement of capital under Article 56 EC where it grants loans commercially or predominantly to residents domiciled within the European Union and has its registered office in a country in which it is not subject, in relation to the taking up and conduct of that business activity, to the requirement of prior authorisation by a State authority of that country or the requirement of regular supervision of its business activity in a manner which is customary in respect of credit institutions within the European Union, and in this particular case within the Federal Republic of Germany, or does reliance on freedom of movement of capital in such a case constitute misuse of the law? Can such an undertaking be treated, in relation to the law of the European Union, in the same way as persons and undertakings established in the territory of the relevant Member State as regards the obligation to obtain authorisation even though it does not have its registered office in that Member State and also does not maintain a branch there?

3.

Do rules which make the commercial grant of credit by an undertaking having its registered office in a country outside the European Union to residents within the European Union subject to authorisation being obtained beforehand from an authority of the relevant Member State of the European Union in which the borrower is domiciled interfere with the freedom of movement of capital under Article 56 EC? In this respect is it relevant whether the unauthorised commercial grant of credit constitutes a criminal offence or merely an administrative one?

4.

Is the prior authorisation requirement referred to in Question 3 justified by Article 58(1)(b) EC, in particular as regards — protecting borrowers from contractual and financial obligations towards persons whose reliability has not been checked beforehand, — protecting this category of persons from undertakings or persons operating improperly with regard to their bookkeeping and their obligation under general rules to provide customers with advice and information, — protecting this category of persons from inappropriate or improper advertising, — ensuring that the lending undertaking has adequate financial resources, — protecting the capital market from the unmonitored grant of large-scale credits, and — protecting the capital market and society as a whole from criminal practices as covered in particular by the provisions on combating money laundering and terrorism?

5.

Does Article 58(1)(b) EC cover the formulation of an authorisation requirement permissible per se under Community law – in the sense of Question 3 – to obtain which it is mandatory for the undertaking to have its central administration or at least a branch in the Member State concerned to be granted authorisation, in particular in order to — enable business processes and transactions to be genuinely and effectively monitored, that is to say even with little or no notice, by the bodies of the Member State concerned, — render business processes and transactions completely intelligible by means of the documents available or to be submitted in the Member State, — have access to those personally responsible for the undertaking in the territory of the Member State, and — ensure, or at least facilitate, payment of the claims of the undertaking's customers within the Member State?

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8.1.2005

EN

Official Journal of the European Union

C 6/29

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Reference for a preliminary ruling by the Landgericht Berlin by decision of that court of 31 August 2004 in the commercial register matter of innoventif Limited, intervener: Die Innoventif Limited

(Case C-453/04)

(2005/C 6/53)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Landgericht Berlin (Regional Court) (Berlin) of 31 August 2004 received at the Court Registry on 28 October 2004, for a preliminary ruling in the commercial register matter of innoventif Limited, intervener: Die innoventif Limited on the following question:

Is it consistent with the freedom of establishment for companies provided for by Article 43 EC and Article 48 EC for the registration of a branch set up in the Federal Republic of Germany of a share company which has its registered office in the United Kingdom to be made subject to the payment of an advance calculated on the basis of the anticipated cost of the publication of the objects of the company as set out in the relevant articles of the Memorandum of Association?

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8.1.2005

EN

Official Journal of the European Union

C 6/30

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Action brought on 28 October 2004 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland

(Case C-455/04)

(2005/C 6/54)

Language of procedure: English

An action against the United Kingdom of Great Britain and Northern Ireland was brought before the Court of Justice of the European Communities on 28 October 2004 by the Commission of the European Communities, represented by Carmel O'Reilly, acting as agent, with an address for service in Luxembourg.

The Commission requests the Court to:

1.

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof (1), or in any event by failing to communicate them to the Commission, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under the Directive;

2.	order the United Kingdom of Great Britain and Northern Ireland to pay the costs.

Pleas in law and main arguments:

The period within which the directive had to be transposed expired on 31 December 2002.

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(1)  OJ L 212, 7.8.2001, p. 12

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8.1.2005

EN

Official Journal of the European Union

C 6/30

---

Action brought on 29 October 2004 by the Commission of the European Communities against the Portuguese Republic

(Case C-457/04)

(2005/C 6/55)

An action against the Portuguese Republic was brought before the Court of Justice of the European Communities on 29 October 2004 by the Commission of the European Communities, represented by António Caeiros and Gregorio Valero Jordana, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

—

principally, declare that, by having failed to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2003/17/EC (1) of the European Parliament and of the Council of 3 March 2003 amending Directive 98/70/EC relating to the quality of petrol and diesel fuels, the Portuguese Republic has failed to fulfil its obligations under the first paragraph of Article 2 of Directive 2003/17/EC;

—	as an ancillary matter, declare that by not having informed the Commission of such provisions forthwith, the Portuguese Republic has failed to fulfil its obligations under the first paragraph of Article 2 of Directive 2003/17/EC;

—	order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for the transposition into national law of Directive 2003/17/EC expired on 30 June 2003.

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(1)  OJ 2003 L 76, p. 10.

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8.1.2005

EN

Official Journal of the European Union

C 6/30

---

Action brought on 25 October 2004 by Commission of the European Communities against Italian Republic

(Case C-462/04)

(2005/C 6/56)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 25 October 2004 by the Commission of the European Communities, represented by Eugenio de March and Carmel O'Reilly, acting as Agents.

The applicant claims that the Court should:

—

Declare that, by failing to adopt the laws, regulations and administrative provisions needed to comply with Council Directive 2001/40/EC (1) of 28 May 2001 on the mutual recognition of decisions on the expulsion of third country nationals, and by failing in any event to give the Commission notice thereof, the Italian Republic has failed to fulfil its obligations under Article 17 of that directive;

—	Order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition expired on 2 December 2002.

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(1)  OJ L 149 of 2.6.2001, p. 34.

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8.1.2005

EN

Official Journal of the European Union

C 6/31

---

Reference for a preliminary ruling by the Audiencia Provincial de Málaga, Sección Primera, by order of that court of 8 July 2004 in the appeal brought by G. Francesco Gasparini and Others against the order of 21 November 2003 commencing summary proceedings

(Case C-467/04)

(2005/C 6/57)

Language of the case: Spanish

Reference has been made to the Court of Justice of the European Communities by order of the Audiencia Provincial de Málaga, Sección Primera, (Provincial Court, Málaga), of 8 July 2004, which was received at the Court Registry on 4 November 2004, for a preliminary ruling in the appeal brought by G. Francesco Gasparini and Others against the order of 21 November 2003 commencing summary proceedings.

The Audiencia Provincial de Málaga asks the Court of Justice to give a preliminary ruling on the following question:

—

As regards res judicata in criminal proceedings ('cosa juzgada penal'): this court requests an interpretation of Article 54 of the Schengen Implementing Convention: 1. Is a finding by the courts of one Member State that an offence is time-barred binding on the courts of the other Member States? 2. Does the acquittal of a defendant on account of the fact that prosecution of the offence is time-barred benefit, by extension, persons being prosecuted in another Member State where the facts are identical? In other words, can persons being prosecuted in another Member State on the basis of the same facts also benefit from a limitation period? 3. If the criminal courts of one Member State declare that the extra-Community nature of goods has not been established for the purposes of an offence of smuggling and acquit the defendant, may the courts of another Member State broaden the investigation in order to prove that the introduction of goods without payment of customs duties was from a non-Member State?

—

As regards the notion of goods in free circulation, this court requests an interpretation of Article 24 EC as to whether: ‘Where a criminal court in a Member State has declared either that it is not established that goods have been unlawfully introduced into the Community or that the offence of smuggling is time-barred’: (a) can the goods be regarded as being in free circulation in the rest of the Community? (b) can the sale of the goods in another Member State following their importation into the Member State where the acquittal was given be regarded as independent conduct which may therefore be punished or, instead, as conduct forming an integral part of the importation?

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8.1.2005

EN

Official Journal of the European Union

C 6/31

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Action brought on 4 November 2004 by Commission of the European Communities against Italian Republic

(Case C-472/04)

(2005/C 6/58)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 4 November 2004 by the Commission of the European Communities, represented by Knut Simonsson and Claudio Loggi, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

—

declare that, by failing to adopt (all) the laws, regulations and administrative provisions needed to comply with Directive 2001/96/EC (1)of the European Parliament and of the Council of 4 December 2001 establishing harmonised requirements and procedures for the safe loading and unloading of bulk carriers, and by failing in any event to give the Commission notice thereof, the Italian Republic has failed to fulfil its obligations under Article 17 of that directive;

—	Order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition expired on 5 August 2003.

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(1)  OJ L 13 of 16.1.2002, p. 9.

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8.1.2005

EN

Official Journal of the European Union

C 6/32

---

Action brought on 12 November 2004 by the Commission of the European Communities against the Hellenic Republic

(Case C-476/04)

(2005/C 6/59)

Language of the case: Greek

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 12 November 2004 by the Commission of the European Communities, represented by Maria Kondou Durande and Carmel O'Reilly, of the Commission's Legal Service.

The applicant claims that the Court should:

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2001/55/EC (1) of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof or, in any event, by failing to inform the Commission of such measures, the Hellenic Republic has failed to fulfil its obligations under Article 32 of that directive.

—	order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing the directive into national law expired on 31 December 2002.

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(1)  OJ L 212 of 7.8.2001, p. 12.

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8.1.2005

EN

Official Journal of the European Union

C 6/32

---

Removal from the register of Case C-67/03 (1)

(2005/C 6/60)

(Language of the case: Italian)

By order of 6 July 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-67/03: Commission of the European Communities v Italian Republic.

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(1)  OJ C 83 of 5.4.2003.

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8.1.2005

EN

Official Journal of the European Union

C 6/32

---

Removal from the register of Case C-93/04 (1)

(2005/C 6/61)

(Language of the case: Italian)

By order of 6 July 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-93/04: Commission of the European Communities v Italian Republic.

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(1)   OJ C 94 of 17.4.2004.

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8.1.2005

EN

Official Journal of the European Union

C 6/32

---

Removal from the register of Case C-117/04 (1)

(2005/C 6/62)

(Language of the case: Italian)

By order of 6 July 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-117/04: Commission of the European Communities v Italian Republic.

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(1)   OJ C 106 of 30.4.2004.

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8.1.2005

EN

Official Journal of the European Union

C 6/32

---

Removal from the register of Case C-118/04 (1)

(2005/C 6/63)

(Language of the case: Italian)

By order of 6 July 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-118/04: Commission of the European Communities v Italian Republic.

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(1)  OJ C 106 of 30.4.2004.

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8.1.2005

EN

Official Journal of the European Union

C 6/33

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 28 October 2004

in Case T-35/01: Shanghai Teraoka Electronic Co. Ltd v Council of the European Union (1)

(Dumping - Imposition of definitive anti-dumping duties - Electronic weighing scales originating in China - Undertaking with market economy status - Determination of injury - Causal link - Rights of the defence)

(2005/C 6/64)

Language of the case: English

In Case T-35/01: Shanghai Teraoka Electronic Co. Ltd, established in Shanghai (China), represented by P. Waer, lawyer, against the Council of the European Union (Agent: S. Marquardt, assisted initially by G. Berrisch and P. Nehl and subsequently by G. Berrisch, lawyers) supported by the Commission of the European Communities, (Agents: V. Kreuschitz, S. Meany and T. Scharf, with an address for service in Luxembourg — action for annulment of Article 1 of Council Regulation (EC) No 2605/2000 of 27 November 2000 imposing definitive anti-dumping duties on imports of certain electronic weighing scales originating in China, South Korea and Taiwan (OJ 2000 L 301, p. 42) — the Court of First Instance (Fourth Chamber, Extended Composition), composed of: V. Tiili, President, J. Pirrung, P. Mengozzi, A.W.H. Meij and M. Vilaras, Judges; J. Plingers, Administrator, for the Registrar, has given a judgment on 28 October 2004, in which it:

1.	Dismisses the action;

2.	Orders the applicant to bear its own costs and to pay those incurred by the defendant;

3.	Orders the intervener to bear its own costs.

---

(1)  OJ C 118 of 21.4.2001.

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8.1.2005

EN

Official Journal of the European Union

C 6/33

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 26 October 2004

in Case T-207/02: Nicoletta Falcone v Commission of the European Communities (1)

(Officials - Open competition - Non-admission to the written tests as a result of the marks obtained in the pre-selection tests - Alleged unlawfulness of the notice of competition)

(2005/C 6/65)

Language of the case: Italian

In Case T-207/02: Nicoletta Falcone, a candidate in Competition COM/A/10/01, represented by M. Condinanzi, against Commission of the European Communities (Agent: J. Currall, assisted by A. Dal Ferro, with an address for service in Luxembourg) — application for annulment of the decision of 2 May 2002 of the selection board in Competition COM/A/10/01 to exclude the applicant from the written tests on the ground that she did not obtain sufficient marks to be included among the 400 best candidates — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A.W.H. Meij and N. Forwood, Judges; H. Jung, Registrar, has given a judgment on 26 October 2004, in which it:

1.	Dismisses the application.

2.	Orders the parties to bear their own costs, including those relating to the application for interim measures.

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(1)  OJ C 202 of 24.8.2002.

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8.1.2005

EN

Official Journal of the European Union

C 6/34

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 28 October 2004

in Joined Cases T-219/02 and T-337/02: Olga Lutz Herrera v Commission of the European Communities (1)

(Officials - Open Competition - Non-admission to test - Notice of competition - Age limit)

(2005/C 6/66)

Language of the case: Spanish

In Joined Cases T-219/02 and T-337/02: Olga Lutz Herrera, resident in Brussels, (Belgium) represented by J.-R. García-Gallardo Gil-Fournier and J. Guillem Carrau, lawyers, against Commission of the European Communities (Agents: J. Currall and H. Tserepa-Lacombe, assisted by J. Rivas Andrés and Guitiérrezz Gisbert, with an address for service in Luxembourg) — application for annulment of the decisions of the selection board in Competition COM/A/6/01 of 31 July 2001 and of the selection board in Competition COM/A/10/01 of 20 December 2001 refusing to admit the applicant to those tests on the ground that she exceeded the age limit and, in the alternative, applications for annulment of the rejection of the administrative complaints lodged by the applicant against the decisions of the selection boards in Competitions COM/A/6/01 and COM/A/10/01) — the Court of First Instance (Fifth Chamber), composed of P. Lindh, President, R. García-Valdecasas and J.D. Cooke, Judges; J. Palacio González, Principal Administrator, for the Registrar, has given a judgment on 28 October 2004, in which it:

1.	Dismisses the applications.

2.	Orders the parties to bear their own costs.

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(1)  OJ C 233 of 28.9.2002.

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8.1.2005

EN

Official Journal of the European Union

C 6/34

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 26 October 2004

in Case T-55/03: Philippe Brendel v Commission of the European Communities (1)

(Officials - Appointment - Classification in grade and step - Additional seniority - Action for damages)

(2005/C 6/67)

Language of the case: French

In Case T-55/03: Philippe Brendel, official of the Commission of the European Communities, residing in Brussels (Belgium), represented by G. Vandersanden and L. Levi, lawyers, against the Commission of the European Communities (Agents: J. Currall, F. Clotuche-Duvieusart, assisted by Me D. Waelbroeck, lawyer, with an address for service in Luxembourg) — application, first, for annulment of the Commission's decision classifying the applicant in Grade A 7, step 2, and, second, for damages to compensate the damage allegedly suffered by the applicant — the Court of First Instance (Second Chamber), composed of: J. Pirrung, President, A.W.H. Meij and N. Forwood, Judges; B. Pastor, Deputy Registrar, has given a judgment on 26 October 2004, in which it:

1.

Orders the Commission to pay the default interest on the sum consisting of the difference between the remuneration payable to the applicant corresponding to Grade A 7, step 3, and the remuneration corresponding to Grade 7, step 2, from 16 April 2001; this interested is to be computed as from the various dates on which each payment, under the Staff Regulations, ought to have been made until payment has been made in full. The rate of interest to be applied is to be calculated on the basis of the rated fixed by the European Central Bank for principal refinancing operations, applicable during the various phases of the period concerned, increased by two points;

2.	Declare that there is no longer any need to rule on the claim for payment of the difference between the remuneration owed to the applicant, corresponding to Grade A 7, step 2, from 16 March 2001;

3.	Dismisses the remainder of the action;

4.	Orders the Commission to pay its own costs and three quarters of the applicant's costs;

5.	Orders the applicant to pay a quarter of his own costs.

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(1)  OJ C 101 of 26.4.2003.

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8.1.2005

EN

Official Journal of the European Union

C 6/35

---

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 28 October 2004

in Case T-76/03 Herbert Meister against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Officials - Reassignment of a head of service - Interest of the service - Equivalence of posts - Right to freedom of expression - Duty to have regard for the interests of officials - Statement of reasons - Right to be heard - Non-contractual liability)

(2005/C 6/68)

Language of the case: French

In Case T-76/03: Herbert Meister, official of the Office for Harmonisation in the Internal Market (Trade Marks and Designs), residing at Muchamiel (Spain), represented by G. Vandersanden, lawyer, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agent: O. Waelbroeck) – application for, first, annulment of the OHIM's decision PERS-AFFECT-02-30 of 22 April 2002 appointing the applicant, in the interest of the service, with his post, as legal adviser to the Vice-President for Legal Affairs and, second, for damages – the Court, composed of J. Azizi, President, M. Jaeger and E. Cremona, Judges; D. Christiansen, Administrator, for the Registrar, has given a judgment on 28 October 2004 in which it:

1.	Orders the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) to pay the applicant EUR 5 000 by way of damages for breach of administrative duty;

2.	Dismisses the remainder of the action;

3.	Orders the OHIM to pay its own costs and one fifth of the costs incurred by the applicant;

4.	Orders the applicant to pay four fifths of his own costs.

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(1)  OJ C 101 of 26.4.2003.

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8.1.2005

EN

Official Journal of the European Union

C 6/35

---

ORDER OF THE COURT OF FIRST INSTANCE

of 29 September 2004

in Case T-394/02: Arnaldo Lucaccioni v Commission of the European Communities (1)

(Pension - Garnishee order on salary - Enforcement of a judgment of a national court)

(2005/C 6/69)

Language of the case: French

In Case T-394/02: Arnaldo Lucaccioni, former official of the Commission of the European Communities, residing at St.-Leonards-On-Sea (United Kingdom), represented by J.R. Iturriagagoitia Bassas and K. Delvolvé, lawyers, against the Commission of the European Communities (Agent: J. Currall, with an address for service in Luxemburg) — First, application for annulment of the Commission's decision to proceed with a garnishee order on the applicant's pension following a judgment by an Italian court ordering the applicant to pay the fees of a doctor appointed by him to represent him before the disability committee and the medical committee and, second, application for reimbursement of certain expenses and fees and payment of damages — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, N.J. Forwood and S. Papasavvas, Judges; H. Jung, Registrar; has made an order on 29 September 2004, in which it:

(1)	Dismisses the action;

(2)	Orders each party to bear its own costs.

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(1)  OJ C 55 of 8.3.2003.

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8.1.2005

EN

Official Journal of the European Union

C 6/36

---

ORDER OF THE COURT OF FIRST INSTANCE

of 14 October 2004

in Case T-3/03: Everlast World's Boxing Headquarters Corporation v Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM) (1)

(Community trade mark - Partial refusal of registration - Withdrawal of the application - No need to adjudicate)

(2005/C 6/70)

Language of the case: German

In Case T-3/03: Everlast World's Boxing Headquarters Corporation, established in New York (United States), represented by A Renck, V. Bomhard, A. Pohlmann and C. Albrecht, lawyers, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: D. Schennen and G. Schneider) – action against the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 30 October 2002 (Case R 391/2001-1) relating to the application for registration of the word mark ‘Choice of Champions’ – the Court of First Instance (Second Chamber), composed of: J. Pirrung, President, A.W.H. Meij and S. Papasavvas, Judges; H. Jung, Registrar, made an order on 14 October 2004, the operative part of which is as follows:

1)	There is no longer any need to adjudicate on the application.

2)	Each party is to bear its own costs.

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(1)  OJ C 55 of 8.3.2003.

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8.1.2005

EN

Official Journal of the European Union

C 6/36

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ORDER OF THE COURT OF FIRST INSTANCE

of 27 September 2004

in Case T-108/04: Nikolaus Steininger v Commission of the European Communities (1)

(Career development report - Reduction of merit points - Not necessary to proceed to judgment)

(2005/C 6/71)

Language of the case: French

In Case T-108/04: Nikolaus Steininger, an official of the Commission, residing in Brussels, represented by N. Lhoest, lawyer, with an address for service in Luxembourg, against Commission of the European Communities (Agents: C. Berardis-Kayser and H. Kraemer, with an address for service in Luxembourg) — Application for annulment of the Commission's decision reducing the merit points awarded to the applicant for the assessment period 2001-2002 — the Court of First Instance (Fourth Chamber), composed of H. Legal, President, P. Mengozzi and I. Wiszniewska-Bialecka, Judges; H. Jung, Registrar, has made an order on 27 September 2004, in which it:

(1)	Declares that it is no longer necessary to proceed to judgment;

(2)	Orders the Commission to bear its own costs and to pay those incurred by the applicant.

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(1)  OJ C 106 of 30.4.2004.

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8.1.2005

EN

Official Journal of the European Union

C 6/36

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ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

of 15 October 2004

in Case T-193/04 R, Hans-Martin Tillack v Commission of the European Communities

(Proceedings for interim measures - Application for interim relief and for suspension of operation of a measure)

(2005/C 6/72)

Language of the case: English

In Case T-193/04 R: Hans-Martin Tillack, represented by I. Forrester QC, T. Bosly, C. Arhold, N. Flandin, J. Herrlinger and J. Siaens, lawyers, against the Commission of the European Communities (Agents: C. Docksey and C. Ladenburger, with an address for service in Luxembourg) — application for suspension of any further implementation or action pursuant to the alleged complaint of the European Anti-Fraud Office (OLAF) of 11 February 2004 to the Belgian and German judicial authorities and for an order that OLAF refrain from obtaining, inspecting, examining or hearing the contents of any documents and information in the possession of the Belgian and German judicial authorities following the search of the applicant's home and office carried out on 19 March 2004 — the President of the Court of First Instance has made an order on 15 October 2004, the operative part of which is as follows:

1.	The application for interim measures is dismissed.

2.	Costs are reserved.

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8.1.2005

EN

Official Journal of the European Union

C 6/37

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Action brought on 19 September 2003 by Telefon und Buch Verlagsgesellschaft m.b.H against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-322/03)

(2005/C 6/73)

Language of the case: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 19 September 2003 by Telefon und Buch Verlagsgesellschaft m.b.H, Salzburg (Austria), represented by H. G. Zeiner, lawyer. The other parties to the proceedings before the Board of Appeal were HEROLD Business Data GmbH & Co KG (previously Harold Business Data AG), Mödling, Austria.

The applicant claims that the Court should:

—

vary the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 June 2003 in the joined cases R 580/2001 and R 592/2001 to the effect that the application for cancellation of the Community trade mark WEISSE SEITEN No 371.096 is dismissed in its entirety; in the alternative

—

set aside the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 June 2003 in the joined cases R 580/2001 and R 592/2001 and instruct the Office for Harmonisation in the Internal Market (Trade Marks and Designs), possibly after supplementary proceedings, to come to a new decision and to dismiss in its entirety the application for cancellation of the Community trade mark WEISSE SEITEN No 371.096; order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments:

Registered Community trade mark in respect of which an application for cancellation was made:	The word mark WEISSE SEITEN for goods and services in Classes 9, 16, 41 and 42 — Community trade mark No 371.096
Owner of the Community trade mark:	The applicant
Applicant for the cancellation of the Community trade mark:	HEROLD Business Data GmbH & Co KG
Decision of the Cancellation Division:	Part cancellation of the Community trade mark in respect of telephone directories of names in printed form or on electronic storage media (Classes 9 and 16) and in respect of the publication of those telephone directories of names (Class 41)
Decision of the Board of Appeal:	Dismissal of the appeal
Grounds for the action:	— The registered trade mark has distinctive character for the purposes of Article 7(1)(b) of Regulation (EC) No 40/94. — The registered sign is not descriptive of any of the goods or services in the list of goods and services in accordance with Article 7(1)(c). — The registered mark is not an indication in common use for the purposes of Article 7(1)(d).

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8.1.2005

EN

Official Journal of the European Union

C 6/37

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Action brought on 23 September 2004 by Heuschen & Schrouff Oriëntal Foods Trading B.V. against the Commission of the European Communities

(Case T-382/04)

(2005/C 6/74)

Language of the case: Dutch

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 23 September 2004 by Heuschen & Schrouff Oriëntal Foods Trading B.V., established in te Landsgraaf (Netherlands), represented by Hendrik Cornelis De Bie.

The applicant claims that the Court should:

—	annul Commission Decision REM 19/2002 of 17 June 2004 in so far as it holds the request for remission of duties unjustified;

—	order the Commission to pay the costs.

Pleas in law and main arguments:

The applicant imports, inter alia, rice paper, which, for several years, was declared under the same CN code. However, following the adoption of Commission Regulation No 1196/97 of 27 June 1997, (1) the goods had to be declared under a different CN code. The applicant concedes that this was not done in its case. However, according to the applicant, its case is a special situation in that the Netherlands customs authorities committed several errors when carrying out their controls. The applicant points out that the Netherlands customs authorities failed to notice that the rice paper had been wrongly classified, even in the course of various controls carried out over a period of eight months. The applicant also argues that it cannot be accused of deception or obvious negligence.

In support of its application, the applicant alleges infringement of Article 239 of Regulation No 2913/92, (2) erroneous assessment of the facts by the Commission and breach of the duty to state reasons. The applicant also alleges infringement of the principles of sound administration and equal treatment, given that the Commission reached a different conclusion in previous decisions. Finally, the applicant alleges infringement of the principle of proportionality.

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(1)  Commission Regulation (EC) No 1196/97 of 27 June 1997 concerning the classification of certain goods in the combined nomenclature (OJ 1997 L 170, p. 13).

(2)  Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).

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8.1.2005

EN

Official Journal of the European Union

C 6/38

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Action brought on 27 September 2004 by EnBW Energie Baden-Württemberg AG against the Commission of the European Communities

(Case T-387/04)

(2005/C 6/75)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 27 September 2004 by EnBW Energie Baden-Württemberg AG, Karlsruhe (Germany), represented by C.- D. Ehlermann, M. Seyfarth, A. Gutermuth and M. Wissmann, lawyers.

The applicant claims that the Court should:

—	annul the Commission's decision of 7 July 2004 on the national plan for the allocation of greenhouse gas emission allowances, communicated by Germany in accordance with Directive 2003/87/EC; (1)

—	order the Commission to pay the costs.

Pleas in law and main arguments:

The applicant is a German utility company. Insofar as the power stations operated by the applicant emit greenhouse gases, as from 1 January 2005 the applicant is subject to the Community scheme for greenhouse gas emission allowance trading introduced by Directive 2003/97/EC.

The applicant challenges, save for a number of matters which are not relevant in the present case, the decision of the Commission which endorsed the national plan communicated by Germany for the allocation of greenhouse gas emission allowances. In particular, the applicant complains of a rule in respect of transfers contained in the plan which allocates to a power station operator who decommissions an old installation and replaces it with a new one the quantity of allowances which it had for the decommissioned installation for a period of four years. In the applicant's view, that gives rise to an over-allocation of allowances which amounts to State aid within the meaning of Article 87(1) EC and cannot be justified. The defendant's different assessment in the contested decision is subject to manifest errors in the statement of reasons and does not show sufficient investigation of the facts. The contested decision therefore infringes Article 87(3) EC and Article 88(2) EC.

Further, in breach of Article 88(2) EC, the defendant failed to initiate the formal State aid procedure, although it must have had considerable doubt about the compatibility of that rule with the EC Treaty.

In addition, the contested decision infringes Article 9(3) of Directive 2003/87/EC and criterion 5 of Annex III thereto, as the over-allocation of emission allowances unduly favours competitors of the applicant, which are strengthened because undertakings like the applicant, which have to decommission nuclear power stations in the near future owing to statutory rules, are unjustifiably placed at a disadvantage.

Finally, the contested decision infringes Article 253 EC owing to numerous gross errors in the statement of reasons.

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(1)  Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, OJ L 275 of 25.10.2003, p. 32.

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8.1.2005

EN

Official Journal of the European Union

C 6/39

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Action brought on 30 September 2004 by Dirk Klaas against the European Parliament

(Case T-393/04)

(2005/C 6/76)

Language of the case: German

An action against the European Parliament was brought before the Court of First Instance of the European Communities on 30 September 2004, by Dirk Klaas, represented by R. Moos, Rechtsanwalt.

The Applicant claims that the Court should:

—

Declare void the annulment of 2 promotion points by the Director General for Personnel on 12 February 2004, confirmed by the letter of rejection from the Secretary General of the European Parliament of 30 June 2004, insofar as 2 promotion points, which had been awarded for the period before 1999, were taken away from the applicant;

—	Annul that letter in that respect and declare that the 2 promotion points are to be carried over to subsequent years;

—	Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant is an official of the Parliament. He was promoted to A6 with retrospective effect as of 1 January 1999. In the course of the promotion procedure all the promotion points earned by the applicant before 1999 were removed from him. By way of grounds, the Parliament referred to the judgment of the Court of Justice in Case T-30/02 Leonhardt v Parliament, which, in its view, allowed the removal of points.

In support of his application the applicant argued that the transitional rule that all points earned before 1999 were to be removed in the event of promotion, was in breach of Article 45 of the Staff Regulations. In the view of the applicant, that rule was unnecessary, disproportionate and contrary to the principle of equality. He also submitted that the present case was not comparable to Case T-30/02.

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8.1.2005

EN

Official Journal of the European Union

C 6/39

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Action brought on 4 October 2004 by SOFFASS S.p.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-396/04)

(2005/C 6/77)

Language of the case: Italian

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 4 October 2004 by SOFFASS S.p.A., represented by Vincenzo Biliardo and Cristiano Bacchini, lawyers.

The other party to the proceedings before the appeal board was: SODIPAN (Société en Commandite par Actions).

The applicant claims that the Court should:

—	Annul the decision of the OHIM First Board of Appeal of 16 June 2004 in Case R-699/2003-1;

—	Order OHIM to pay the costs.

Pleas in law and main arguments:

Applicant for Community trade mark:	The applicant
Community trade mark considered:	Figurative mark ‘NICKY’ – Application No 1 315 985 for products in Class 16 (Paper, cardboard and goods made from these materials, for household and cleaning purposes).
Proprietor of mark or sign cited in the opposition proceedings:	The French company SODIPAN (Société en Commandite par Actions).
Mark or sign cited in opposition.	Figurative French marks ‘NOKY’ (No 1 346 586) and ‘noky’ (No 1 400 192) for products in Class 16.
Decision of the Opposition Division:	Opposition dismissed.
Decision of the Board of Appeal:	Annulment of the Opposition Division decision, the matter being referred back to it for reconsideration.
Pleas in law:	Misapplication of Article 8(1)(b) of Regulation (EC) No 40/94 (likelihood of confusion).

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8.1.2005

EN

Official Journal of the European Union

C 6/40

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Action brought on 7 October 2004 by Scandlines Sverige AB against the Commission of the European Communities

(Case T-399/04)

(2005/C 6/78)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 7 October 2004 by Scandlines Sverige AB, Helsingborg, Sweden, represented by C. Vajda QC and R. Azelius and K. Azelius, lawyers.

The applicant claims that the Court should:

—	annul the Decision of the Commission of the European Communities, of 23 July 2004, rejecting the applicant's complaint of 2 July 1997;

—	remit the case back to the Commission for re-examination of the complaint in the light of the Court's judgment;

—	order the Commission to indemnify the applicant for the costs of these proceedings irrespective of the outcome.

Pleas in law and main arguments

The applicant is Swedish company whose main activity consists in being the port agent of a ferry-operator. The applicant filed a complaint with the Commission, against Helsingborgs Hamn AB (HHAB), a company responsible for running the port in Helsingborg in Sweden and for setting port charges. The applicant considered that HHAB charged the applicant excessive port charges, abusing its dominant position in breach of Article 82 EC. This complaint was rejected by the contested decision.

In support of its application the applicant contends that the Commission erred in concluding that port charges to ferry-operators were not excessive. According to the applicant the Commission's cost/price analysis established that HHAB has been making returns, on its ferry business, of over 100 % the value of the equity employed in this business. The applicant argues that such returns cannot be achieved in a competitive market and are therefore excessive, unfair and abusive. It considers that in rejecting that conclusion the Commission misapplied the term ‘economic value’ and failed to apply the principle of proportionality or the correct burden of proof. It also contends that the Commission wrongly rejected the comparison between prices charged to ferry-operators and those charged to cargo-operators as well as the comparison between prices charged at Helsingborg and those charged at Elsinore, at the other end of the same route. The applicant also challenges the Commission's finding that there was no price discrimination in the meaning of Article 82 EC between ferry and cargo operators. According to the applicant, the Commission wrongly concluded that services provided by HHAB to those two branches are not equivalent and that there was no competitive disadvantage to the ferry operators.

The applicant further claims that the Commission's reasoning is wrong, inadequate and contradictory and for this reason violates Article 253 EC. It also invokes a breach of its right to be heard under Article 6 of Regulation 2842/98 and contends that the Commission failed to carry out a proper investigation within a reasonable time, thereby breaching Article 10 EC, Article 6 of the European Convention of Human Rights and the principle that the Commission must act within a reasonable time.

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8.1.2005

EN

Official Journal of the European Union

C 6/40

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Action brought on 8 October 2004 by Nadine Schmit against the Commission of the European Communities

(Case T-419/04)

(2005/C 6/79)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 8 October 2004 by Nadine Schmit, residing in Ispra (Italy), represented by Pierre Paul Van Gehuchten and Pierre Jadoul, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

—	annul the explicit rejection of 8 July 2004 of the applicant's complaint, the decision not to draw up an evaluation report for the period 2001-2002 and the authority's decision not to include her in the number of officials promoted to Grade C2 in the promotion year 2003;

—	order the defendant to pay the applicant the sum of EUR 3 000 by way of compensation for her non-material damage;

—	order the defendant to pay all the costs.

Pleas in law and main arguments

The applicant, an official of the Commission, took sick leave in October 2002. She has received an invalidity pension since September 2003. It was on that basis that the appointing authority decided not to draw up a staff report for the applicant for the period 2001-2002. She therefore received no merit or priority points for the promotion year 2003 and her name was not included in the list of officials promoted to Grade C2.

The applicant challenges the decisions at issue, pleading infringement of Article 43 of the Staff Regulations and of the general provisions implementing that article (decision of the Commission of 26 April 2002) and of the principles of equal treatment and proper administration. In that context, the applicant claims that the Commission was not entitled, at the end of 2002 or at the beginning of 2003, to regard the applicant as an official less than a year away from retirement for whom there was no reason to draw up a staff report. Challenging the decision not to promote her to Grade C2, the applicant alleges breach of Article 45 of the Staff Regulations and of the principles of equal treatment and proper administration.

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8.1.2005

EN

Official Journal of the European Union

C 6/41

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Action brought on 11 October 2004 by José Antonio Carreira against the European Agency for Safety and Health at Work

(Case T-421/04)

(2005/C 6/80)

Language of the case: French

An action against the European Agency for Safety and Health at Work was brought before the Court of First Instance of the European Communities on 11 October 2004 by José Antonio Carreira, residing in Brussels, represented by Georges Vandersanden and Laure Levi, lawyers.

The applicant claims that the Court should:

—	annul the Agency's decision awarding the applicant part only of the differential allowance mentioned in Article 7(2) of the Staff Regulations as a result of his being called upon to occupy a temporary posting between 13 January 2003 and 15 August 2004;

—	order the defendant to pay the balance of the differential allowance payable under Article 7(2) of the Staff Regulations;

—	order the defendant to pay all the costs.

Pleas in law and main arguments

The applicant in this case who, like the defendant's legal adviser, was called upon to occupy temporarily the duties of the Agency's head of administration, because the holder of that post was absent on sick leave, challenges the appointing authority's decision to divide the amount of the differential allowance between the two persons who filled the temporary posting. He responded to that decision by stating that he did not accept that he had worked part-time in replacing the head of administration and that, in consequence, he was entitled to the whole of the differential allowance in dispute.

In support of his claims, the applicant alleges infringement of Article 7(2) of the Staff Regulations, and breach of the principles of correspondence between the grade and the post, of non-discrimination and of proportionality.

He also considers that the duty to state the reasons on which an act is based was not complied with in the circumstances.

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8.1.2005

EN

Official Journal of the European Union

C 6/41

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Action brought on 22 October 2004 by Walter Parlante against the Commission of the European Communities

(Case T-432/04)

(2005/C 6/81)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 22 October 2004, by Walter Parlante, residing in Enghien (Belgium), represented by L. Vogel, lawyer.

The applicant claims that the Court should:

—	Annul the Appointing Authority's decision adopted on 5 July 2004 rejecting the applicant's complaint dated 26 February 2004, by which he challenged the decision refusing to promote him from Grade C2 to Grade C1, for the 2003 promotion procedure;

—	If, and in so far as necessary, annul also the Appointing Authority's original decision in December 2003 refusing to promote the applicant from Grade C2 to Grade C1, for the 2003 promotion procedure;

—	Order the Defendant to pay the costs.

Pleas in law and main arguments

In support of his action, the applicant relies on infringement of Article 45 of the Staff Regulations, breach of the principle of non-discrimination and manifest error of assessment. The applicant submits that the new promotion procedure does not provide a proper fair examination of officials' individual merits since the examination is made only by comparison with the other officials of the same Directorate-General.

The applicant also alleges that Article 12 of the General Provisions implementing Article 45 of the Staff Regulations infringes that Article and amounts to discrimination in that certain officials were, in the course of the 2003 promotion procedure, awarded additional priority points on the sole ground that they were proposed for promotion in 2002 without actually being promoted.

The applicant also relies on breach of the principle of legitimate expectations.

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8.1.2005

EN

Official Journal of the European Union

C 6/42

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Action brought on 22 October 2004 by Angela Davi against the Commission of the European Communities

(Case T-433/04)

(2005/C 6/82)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 22 October 2004, by Angela Davi, residing in Brussels, represented by L. Vogel, lawyer.

The applicant claims that the Court should:

—	Annul the Appointing Authority's decision adopted on 2 July 2004 rejecting the applicant's complaint dated 1 March 2004, by which she challenged the decision refusing to promote her from Grade C3 to Grade C2, for the 2003 promotion procedure;

—	If, and in so far as necessary, annul also the Appointing Authority's original decision in December 2003 refusing to promote the applicant from Grade C3 to Grade C2, for the 2003 promotion procedure;

—	Order the Defendant to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those in Case T-432/04.

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8.1.2005

EN

Official Journal of the European Union

C 6/42

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Action brought on 22 October 2004 by Alex Milbert and Others against the Commission of the European Communities

(Case T-434/04)

(2005/C 6/83)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 22 October 2004, by Alex Milbert, residing in Hesperange (Luxembourg), Imre Czigàny, residing in Rhode St. Genèse (Belgium), José Manuel De la Cruz González, residing in Brussels, Viviane Deveen, residing in Overijse (Belgium), Mohammad Reza Fardoom, residing in Roodt-sur-Syre (Luxembourg), Laura Gnemmi, residing in Hünsdorf (Luxembourg), Marie-José Reinard, residing in Bertrange (Luxembourg), Vassilios Stergiou, residing in Kraainem (Belgium) and Ioannis Terezakis, residing in Brussels, represented by G. Bounéou and F. Frabetti, lawyers.

The applicants claim that the Court should:

—	Annul the list of officials promoted under the 2003 procedure, in so far as that list does not include the applicants' names, and, incidentally, the formal measures leading to that decision;

—	Alternatively, annul the allocation of promotion points under the 2003 procedure in relation to the applicants;

—	Order the Commission to pay the costs.

Pleas in law and main arguments

The applicants, Commission officials, were not promoted under the 2003 procedure. By their action, they question the system used by the Commission for that procedure, in so far as that system provides for the addition to merit and seniority points awarded to each official, ‘reliquat’ points awarded to officials on the list of officials eligible for promotion in the previous procedure but not promoted, as well as points awarded by the Directorates-General, special transitional points, points in the interests of the service and ‘appeal’ points awarded by the Promotions Committee. The applicants claim that by operating such a system the Commission did not, in breach of Article 45 of the Staff Regulations and the General Provisions for its implementation, consider the comparative merits of the officials eligible for promotion.

On the same basis, the applicants plead breach of the principle of non-discrimination, of the ban on arbitrary procedures, of the duty to state reasons, of the principle of legitimate expectations, of the rule ‘patere legem quam ipse facit’ and of the duty to have regard to the interests of officials.

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8.1.2005

EN

Official Journal of the European Union

C 6/43

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Action brought on 22 November 2004 by Manuel Simões Dos Santos against the Office for Harmonisation in the Internal Market

(Case T-435/04)

(2005/C 6/84)

Language of the case: French

An action against the Office for Harmonisation in the Internal Market was brought before the Court of First Instance of the European Communities on 22 November 2004, by Manuel Simões Dos Santos, residing in Alicante (Spain), represented by A.C. Carreras, lawyer.

The applicant claims that the Court should:

—	Annul the decision of 7 July 2004 rejecting the applicant's complaint and the decisions of 15 December 2003 fixing the cumulative total of merit points awarded to the complainant and the decision of 12 December 2003 confirming that decision;

—	Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant in this case was promoted to Grade A5 in the 2002 promotion procedure. On that occasion, the Appointing Authority notified him of an outstanding balance of 54.19 points. Nevertheless, by letter of 15 December 2003 from the Department of Human Resources, he learnt that his points total at 30 September 2003 was only 1.5 points. It follows from that letter, which constitutes the contested decision, that that reduction in points is not the result of the conversion of the points awarded before the new system established by the Office's decision ADM-03-35, but of a complete cancellation thereof, in consequence of the application of the new rule for starting at zero after promotion, as laid down in that decision.

In support of his claims, the applicant first of all pleads breach of the principles of legality, legal certainty and non-retroactivity, in so far as there are no exceptional circumstances, in this case, which could justify the withdrawal of the balance of points already awarded to an official and to which he was entitled under the regime in force at the time.

The applicant also pleads breach of the principles of protection of legitimate expectations and of non-discrimination, and of the duty to state reasons.

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8.1.2005

EN

Official Journal of the European Union

C 6/43

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Action brought on 26 October 2004 by Carlos Sánchez Ferriz against the Commission of the European Communities

(Case T-436/04)

(2005/C 6/85)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 26 October 2004, by Carlos Sánchez Ferriz, residing in Brussels, represented by G. Bounéou and F. Frabetti, lawyers.

The applicant claims that the Court should:

—	Annul the list of officials promoted under the 2003 procedure, in so far as that list does not include the applicant's name, and, incidentally, the formal measures leading to that decision;

—	Alternatively, annul the allocation of promotion points under the 2003 procedure in relation to the applicant;

—	Order the Commission to pay the costs.

Pleas in law and main arguments

In support of his action, the applicant relies on pleas in law and main arguments identical to those pleaded by the applicants in Case T-434/04.

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8.1.2005

EN

Official Journal of the European Union

C 6/44

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Action brought on 1 November 2004 by Holger Standertskjöld-Nordenstam against the Commission of the European Communities

(Case T-437/04)

(2005/C 6/86)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 1 November 2004, by Holger Standertskjöld-Nordenstam, residing in Waterloo (Belgium), represented by T. Demaseure, lawyer.

The applicant claims that the Court should:

—	Annul the Commission's decision not to include the applicant's name on the list, published in Administrative Notices No 84-2003 of 19 December 2003, of the officials most deserving of promotion to Grade A3 in the ‘second round’ of the 2003 promotion procedure;

—	Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant was proposed by his Directorate-General for promotion to Grade A3 in the 2003 procedure. The Consultative Committee on Appointments established a list of fourteen officials most deserving of promotion. The applicant was not on it, having been placed fifteenth. The Appointing Authority subsequently decided to add the names of 2 cabinet members to the list. On that basis the applicant alleges, in support of his action, that the contested decision infringes Article 45 of the Staff Regulations, since the merits of those 2 cabinet members were not compared with those of the other officials, including the applicant.

The applicant also relies on a second plea in law alleging breach of Article 4.2 of the Commission's decision of 19 July 1988. In that context, the applicant alleges that the promotions were made without the prior opinion of the Consultative Committee on Appointments and that the list of the most deserving officials should have included a number of officials' names exceeding the possible promotions by 50 % and not, as in this case, a number of names equal to the number of available posts.

The applicant pleads, lastly, breach of the duty to state reasons.

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8.1.2005

EN

Official Journal of the European Union

C 6/44

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Action brought on 29 October 2004 by Elke Huober against the Council of the European Union

(Case T-438/04)

(2005/C 6/87)

Language of the Case: French

An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 29 October 2004 by Elke Huober, resident in Brussels, represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers.

The applicant claims that the Court should:

—	annul the decision of the Council refusing to grant to the applicant the expatriation allowance and resulting rights, from her entry into service on 1 September 2003;

—	order the Council to pay the costs.

Pleas in law and main arguments

Before entering into the Council's service, the applicant worked in the information office of the Land Baden-Würtemberg in Brussels. In the present action she challenges the decision refusing to grant her the expatriation allowance.

In support of her action, the applicant pleads breach of Article 4(1)(a) of Annex VII to the Staff Regulations in that the Council did not consider that she was in circumstances arising from work done for another State. The applicant also pleads breach of the principle of equal treatment and of non-discrimination.

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8.1.2005

EN

Official Journal of the European Union

C 6/45

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Action brought on 2 November 2004 by Jean-Claude Heyraud against the Commission of the European Communities

(Case T-441/04)

(2005/C 6/88)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 2 November 2004, by Jean-Claude Heyraud, residing in Brussels, represented by S. Orlandi, A. Cooolen, J.-N. Louis and E. Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

—	Annul the Commission's decision establishing the list of officials promoted to Grade A3 in the second round of the 2003 promotion procedure, and rejecting the applicant's candidature;

—	Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant in this case, an official in Grade A4, objects to the Appointing Authority's refusal to promote him to the higher grade in the second round of the 2003 promotion procedure.

In support of his claims, he pleads infringement of Article 45 of the Staff Regulations and breach of the principle of non-discrimination.

He states, in that regard, that the Commission ‘standardised’ the merit points awarded by the Directorates-General and Services to officials in middle management in Grade A4 eligible for promotion, for the purposes of considering their comparative merits as prescribed by the Staff Regulations. The standardised mark is fixed in relation to the average merit points awarded to the officials in Grade A4 eligible for promotion to Grade A3 in the second round.

The method used by the Commission is relevant only provided that the average is calculated on the basis of a sufficient number of eligible officials. Since he was the only official in Grade A4 in his Service eligible for promotion in the second round of the 2003 procedure, the applicant was awarded a standardised mark of 100 regardless of his merits and the specific criteria used by his Service to fix merit points.

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8.1.2005

EN

Official Journal of the European Union

C 6/45

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Action brought on 5 November 2004 by Andrea Walderdorff against the Commission of the European Communities

(Case T-442/04)

(2005/C 6/89)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 5 November 2004, by Andrea Walderdorff, residing in Brussels, represented by L. Vogel, lawyer.

The applicant claims that the Court should:

—	Annul the Appointing Authority's decision adopted on 19 July 2004 rejecting the applicant's complaint dated 26 February 2004, by which she challenged the decision refusing to promote her from Grade A5 to Grade A4, for the 2003 promotion procedure;

—	If, and in so far as necessary, annul also the Appointing Authority's original decision in November 2003 refusing to promote the applicant from Grade A5 to Grade A4, for the 2003 promotion procedure;

—	Order the Defendant to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those in Case T-432/04.

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8.1.2005

EN

Official Journal of the European Union

C 6/46

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Action brought on 2 December 2004 by Danish Management A/S against the Commission of the European Communities

(Case T-463/04)

(2005/C 6/90)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 2 December 2004 by Danish Management A/S, Viby J, Denmark, represented by C. Kennedy-Loest and C. Thomas, Solicitors.

The applicant claims that the Court should:

—

annul the Commission's decisions of 18 November 2004 and 30 November 2004 rejecting the tender submitted by the applicant in tender procedure service contract for a monitoring system of the implementation of projects and programmes of external co-operation financed by the European Community — lot 2: ACP, South Africa and Cuba — EuropeAid 119453/C/SV/Multi;

—	order the defendant to pay the applicant's costs.

Pleas in law and main arguments

The applicant submitted a tender for a service contract for a monitoring system of the implementation of projects and programmes of external co-operation financed by the European Community — lot no. 2 covering ACP, South Africa and Cuba, which was published the 26 May 2004 (1).

The Commission rejected the tender by decision of 18 November 2004 on the grounds that there was a discrepancy between the applicants financial offer and technical offer as to the number of man/days required. The Commission upheld its decision by letter of 30 November 2004.

The applicant submits that the Commission's decision is based on an error of fact since, according to the applicant, there was no such discrepancy between the two parts of the companies tender.

The applicant further alleges that the Commission ought to have sought to clarify the alleged disrepancy and that in not having done so before rejecting the applicants tender the Commission has taken a disproportionate action and failed to exercise due diligence, whereby it infringed its duty of care.

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(1)  OJ S 102-081573.

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8.1.2005

EN

Official Journal of the European Union

C 6/46

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Action brought on 3 December 2004 by Impala against the Commission of the European Communities

(Case T-464/04)

(2005/C 6/91)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 3 December 2004 by Impala, Brussels (Belgium), represented by S. Crosby and J.Golding, Solicitors.

The applicant claims that the Court should:

—	Annul the Commission's decision of 19 July 2004 in case no. COMP/M.3333 — Sony/BMG in its entirety;

—

In the alternative, annul the contested decision insofar as it relates to either or all of the following: — collective dominance on the market for licences for online music; — single dominance in the markets for distribution of online music; — coordination of the parties' respective music publishing businesses;

—	Order the Commission to bear the costs incurred by the applicant in connection with this action.

Pleas in law and main arguments

The applicant is an international association with the purpose of promoting the general interests of its members, which are independent music companies. It requests the annulment of the Commission's decision approving the merger between the global recorded music businesses of Bertelsmann AG and Sony Corporation of America.

In support of its application it submits that in authorising the merger the Commission violated Article 253 EC, Article 81 paragraph 1 EC, Regulation 4064/89 (1) as well as the rules of law governing their application and committed manifest errors of assessment:

—	by finding that a collective dominant position did not exist in the market for recorded music prior to the merger;

—	by finding that the merger did not strengthen an existing collective dominant position in that market;

—	by finding that the merger would not create a collective dominant position in the market for recorded music, in the market for licences for online music or in the market for the distribution of online music;

—	by finding that the merger would not lead to the coordination of the parties' respective music publishing businesses.

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(1)  OJ L 395, p. 1

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8.1.2005

EN

Official Journal of the European Union

C 6/48

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(2005/C 6/92)

Last publication of the Court of Justice in the Official Journal of the European Union

OJ C 314, 18.12.2004

Past publications

OJ C 300, 4.12.2004

OJ C 273, 6.11.2004

OJ C 262, 23.10.2004

OJ C 251, 9.10.2004

OJ C 239, 25.9.2004

OJ C 228, 11.9.2004

These texts are available on:

EUR-Lex:http://europa.eu.int/eur-lex

CELEX:http://europa.eu.int/celex

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