19.3.2005

Official Journal of the European Union

C 69/1

JUDGMENT OF THE COURT

(First Chamber)

of 13 January 2005

in Case C-181/03 P: Albert Nardone, v Commission of the European Communities (1)

(Appeal - Former official - Application for invalidity pension - Conditions for granting)

(2005/C 69/01)

Language of the case: French

In Case C-181/03 P: appeal under Article 56 of the Statute of the Court of Justice, lodged at the Court on 25 April 2003 by Albert Nardone, former official of the Commission of the European Communities, residing in Piétrain (Belgium), (lawyer: I. Kletzlen), the other party to the proceedings being the Commission of the European Communities (Agent: J. Currall) – the Court (First Chamber), composed of P. Jann, President of the Chamber, A. Rosas, R. Silva de Lapuerta (Rapporteur), S. von Bahr and K. Schiemann, Judges; L.M. Poiares Maduro, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, gave a judgment on 13 January 2005, in which it:

1.	Dismisses the appeal;

2.	Orders Mr Nardone to pay the costs.

(1) OJ C 158 of 5.7.2003.

19.3.2005

Official Journal of the European Union

C 69/1

JUDGMENT OF THE COURT

(Fourth Chamber)

of 13 January 2005

in Case C-126/04 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven): Heineken Brouwerijen BV v Hoofdproductschap Akkerbouw (1)

(Cereals - Import regime - Community tariff quota for barley for malting - Discrimination)

(2005/C 69/02)

Language of the case: Dutch

In Case C-126/04: reference to the Court under Article 234 EC from the College van Beroep voor het bedrijfsleven (Netherlands), made by decision of 18 February 2004, received at the Court on 8 March 2004, in the proceedings between Heineken Brouwerijen BV and Hoofdproductschap Akkerbouw – the Court (Fourth Chamber), composed of K. Lenaerts (Rapporteur), President of the Chamber, E. Juhász and M. Ilešič, Judges; C. Stix-Hackl Advocate General; R. Grass, Registrar, has given a judgment on 13 January 2005, in which it has ruled:

Consideration of the questions raised has disclosed nothing capable of affecting the validity of Council Regulation (EC) No 1269/1999 of 14 June 1999 and Council Regulation No 822/2001 of 24 April 2001 opening a Community tariff quota for barley for malting falling within CN code 1003 00.

(1) OJ C 106 of 30.04.2004.

19.3.2005

Official Journal of the European Union

C 69/2

ORDER OF THE COURT

(Sixth Chamber)

of 25 November 2004

in Case C-18/03 P Vela Srl and Tecnagrind SL v Commission of the European Communities (1)

(Appeal - EAGGF - Financial participation in projects - Withdrawal of the Fund's financial aid)

(2005/C 69/03)

Language of the case: Italian

In Case C-18/03 P: appeal under Article 49 of the EC Statute of the Court of Justice, brought on 16 January 2003 by Vela Srl, established in Milan (Italy), and Tecnagrind SL, established in Barcelona (Spain), (Lawyer: M. Carretta), the other party to the proceedings being the Commission of the European Communities (Agents: C. Cattabriga and L. Visaggio, assisted by M. Moretto) – the Court (Sixth Chamber), composed of A. Borg Barthet, President of the Chamber, S. von Bahr and A. Ó Caoimh (Rapporteur), Judges; J. Kokott, Advocate General; R. Grass, Registrar, has made an order on 25 November 2004, the operative part of which is as follows:

1.	The appeal is dismissed.

2.	Vela Srl and Tecnagrind SL shall pay the costs.

(1) OJ C 70 of 22.03.2003.

19.3.2005

Official Journal of the European Union

C 69/2

ORDER OF THE COURT

(Fifth Chamber)

of 8 October 2004

in Case C-248/03 Commission of the European Communities v Transport Environment Development Systems (Trends) and Others (1)

(Arbitration clause - Decision 2004/407/EC, Euratom - Articles 2 and 3 - Reference to the Court of First Instance)

(2005/C 69/04)

Language of the case: Greek

In Case C-248/03: application under Article 238 EC, brought on 6 June 2003, by Commission of the European Communities (Agent: M. Patakia, assisted by M. Bra, K. Kapoutzidou and S. Chatziyiannis) against Transport Environment Development Systems (Trends), a civil partnership with non-profit-making aims, established in Athens (Greece), (Lawyer: V. Christianos), Marios Kontaratos, residing in Athens (Greece), Anastasios Tillis, residing in Neo Irakleio, Attica (Greece), (Lawyer: V. Christianos), Georgios Argyrakos, residing in Athens (Greece), Konstantinos Petrakis, residing in Cholargos, Attica (Greece), Fotini Koutrouba, residing in Glyfada, Attica (Greece) – the Court (Fifth Chamber), composed of C. Gulmann, acting for the President of the Chamber, R. Schintgen and G. Arestis (Rapporteur), Judges; M. Poiares Maduro, Advocate General: R. Grass, Registrar, has made an order on 8 October 2004, the operative part of which is as follows:

Case C-248/03 is referred to the Court of First Instance of the European Communities.

(1) OJ C 184 of 02.08.2003.

19.3.2005

Official Journal of the European Union

C 69/2

ORDER OF THE COURT

(Fifth Chamber)

of 8 October 2004

in Case C-249/03 Commission of the European Communities v Transport Environment Development Systems (Trends) and Others (1)

(Arbitration clause - Decision 2004/407/EC, Euratom - Articles 2 and 3 - Reference to the Court of First Instance)

(2005/C 69/05)

Language of the case: Greek

In Case C-249/03: application under Article 238 EC, brought on 10 June 2003, by Commission of the European Communities (Agent: M. Patakia, assisted by M. Bra, K. Kapoutzidou and S. Chatziyiannis) against Transport Environment Development Systems (Trends), a civil partnership with non-profit-making aims, established in Athens (Greece), (Lawyer: V. Christianos), Marios Kontaratos, residing in Athens (Greece), Anastasios Tillis, residing in Neo Irakleio, Attica (Greece), (Lawyer: V. Christianos), Georgios Argyrakos, residing in Athens (Greece), Konstantinos Petrakis, residing in Cholargos, Attica (Greece), Fotini Koutrouba, residing in Glyfada, Attica (Greece) – the Court (Fifth Chamber), composed of C. Gulmann, acting for the President of the Chamber, R. Schintgen and G. Arestis (Rapporteur), Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, has made an order on 8 October 2004, the operative part of which is as follows:

Case C-249/03 is referred to the Court of First Instance of the European Communities.

(1) OJ C 184 of 02.08.2003.

19.3.2005

Official Journal of the European Union

C 69/3

ORDER OF THE COURT

(Fourth Chamber)

of 18 November 2004

in Joined Cases C-261/03 and C-262/03: Reference for a preliminary ruling from the Tribunale amministrativo regionale per l'Emiglia-Romagna in Allevamenti Associati Srl v Regione Emilia-Romagna and Latteria Sociale Moderna Soc. Coop. Arl v Azienda di Stato per gli interventi nel mercato agricolo (AIMA) and Others (1)

(Reference for a preliminary ruling - Article 104(3) of the Rules of Procedure - Milk and milk products - Additional levy scheme - Treatment and processing by a dairy under a work contract - Concepts of ‘delivery’ and ‘direct sale’)

(2005/C 69/06)

Language of the case: Italian

In Joined Cases C-261/03 and C-262/03: reference for a preliminary ruling under Article 234 EC from the Tribunale amministrativo regionale per l'Emiglia-Romagna (Italy), made by decisions of 6 May 2003, received at the Court on 17 June 2003, in the proceedings Allevamenti Associati Srl v Regione Emilia-Romagna, supported by Agenzia per le Erogazioni in Agricoltura (AGEA) and Latteria Sociale Moderna Soc. Coop. arl (C-261/03), and Latteria Sociale Moderna Soc. Coop. arl v Azienda di Stato per gli interventi nel mercato agricolo (AIMA), Servizio Provinciale Agricoltura di Reggio Emilia, Regione Emilia-Romagna, and Agenzia per le Erogazioni in Agricoltura (AGEA), supported by Allevamenti Associati Srl (C-262/03) – the Court (Fourth Chamber), composed of N. Colneric (Rapporteur), acting as President of the Fourth Chamber, J.N. Cunha Rodrigues and E. Juhász, Judges; L.A. Geelhoed, Advocate General; María Múgica Arzamendi, Principal Administrator, Registrar, made an order on 18 November 2004, the operative part of which is as follows:

Articles 1, 2 and 9(g) of Council Regulation (EEC) No 3950/92 of 28 December 1992 establishing an additional levy in the milk and milk products sector and Article 1 of Commission Regulation (EEC) No 536/93 of 9 March 1993 laying down detailed rules on the application of the additional levy on milk and milk products must be interpreted as meaning that, in respect of the determination of milk quotas and the application of the additional levy, the fact that the milk-producing undertaking transfers, for payment, certain quantities of milk to third parties without relinquishing title to them, under a work contract relating to the treatment and processing of that milk into cheese, butter and skim milk, must be classified as delivery.

(1) OJ C 200, 23.8.2003.

19.3.2005

Official Journal of the European Union

C 69/3

ORDER OF THE COURT

(Fourth Chamber)

of 19 October 2004

in Case C-425/03: Reference for a preliminary ruling from the Giudice di pace di Milazzo in Provvidenza Regio v AXA Assicurazioni SpA (1)

(Reference for a preliminary ruling - Inadmissibility)

(2005/C 69/07)

Language of the case: Italian

In Case C-425/03: reference for a preliminary ruling under Article 234 EC from the Giudice di pace di Milazzo (Italy), made by decision of 18 April 2003, received at the Court on 6 October 2003, in the proceedings between Provvidenza Regio and AXA Assicurazioni SpA the Court (Fourth Chamber), composed of K. Lenaerts (Rapporteur), President of Chamber, N. Colneric and J.N. Cunha Rodrigues, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, made an order on 19 October 2004, the operative part of which is as follows:

The reference for a preliminary ruling made by the Giudice di pace di Milazzo, by decision of 18 April 2003, is manifestly inadmissible.

(1) OJ C 289, 29.11.2003.

19.3.2005

Official Journal of the European Union

C 69/4

ORDER OF THE COURT

(Third Chamber)

of 14 December 2004

in Case C-1/04 SA Tertir-Terminais de Portugal SA v Commission of the European Communities (1)

(Application for authorisation to serve a garnishee order on the Commission of the European Communities)

(2005/C 69/08)

Language of the case: French

In Case C-1/04 SA: application for authorisation to serve a garnishee order on the Commission of the European Communities brought on 15 March 2004 by Tertir-Terminais de Portugal SA, established in Terminal do Freixieiro (Portugal), (represented by G. Vandersanden, C. Houssa, L. Lévi and F. Gonçalves Pereira, lawyers) against Commission of the European Communities (Agents: I. Martinez del Peral Cagigal and F. Clotuche-Duvieusart) – the Court (Third Chamber), composed of A. Rosas, President of the Chamber, A. Borg-Barthet, S. von Bahr (Rapporteur), J. Malenovský and A. Ó Caoimh, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar; has made an order on 14 December 2004, the operative part of which is as follows:

1.	The action is dismissed.

2.	Tertir-Terminais de Portugal SA shall pay the costs.

(1) OJ C 106 of 30.04.2004.

19.3.2005

Official Journal of the European Union

C 69/4

Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven by order of that court of 15 December 2004 in Visserijbedrijf D.J. Koornstra Zn. V.o.f. v Productschap Vis

(Case C-517/04)

(2005/C 69/09)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the College van Beroep voor het bedrijfsleven (Administrative Court for Trade and Industry) (Netherlands) of 15 December 2004 received at the Court Registry on 20 December 2004, for a preliminary ruling in the proceedings between Visserijbedrijf D.J. Koornstra Zn. V.o.f. and Productschap Vis (Fish Marketing Board) on the following questions:

Is a charge, such as that in the present proceedings, levied on an operator in a Member State for landing shrimp with a fishing vessel registered in that Member State and used to finance shrimp sieves and peelers in that Member State consistent with Community law and, in particular, with Articles 25 and 90 EC, if the charge is also payable on shrimp landed by such an operator elsewhere in the Community?

Is the answer to this question affected by any of the following:

a.	where the shrimps are caught;

b.	whether, after being landed elsewhere in the Community, the shrimps are transported to the Member State in which the fishing vessel is registered;

c.	whether, after the shrimps have been landed elsewhere in the Community, payment for sieving and peeling is made in that place also?

19.3.2005

Official Journal of the European Union

C 69/4

Appeal brought on 27 December 2004 by the Kingdom of Spain against the judgment delivered on 21 October 2004 by the Court of First Instance (Fifth Chamber, Extended Composition) in Case T-36/99 between Lenzing AG and the Commission of the European Communities, supported by the Kingdom of Spain

(Case C-525/04 P)

(2005/C 69/10)

Language of the case: German

An appeal against the judgment of the Court of First Instance of the European Communities (Fifth Chamber, Extended Composition) of 21 October 2004 in Case T- 36/99 between Lenzing AG and the Commission of the European Communities, supported by the Kingdom of Spain, was brought before the Court of Justice of the European Communities on 27 December 2004 by the Kingdom of Spain, represented by Juan Manuel Rodríguez Cárcamo, Abogado del Estado, with an address for service in Luxembourg.

The Kingdom of Spain claims that the Court should:

Set aside in full the judgment of the Court of First Instance (Fifth Chamber, extended composition) of 21 October 2004 in Case T-36/99 between Lenzing AG and the Commission of the European Communities, supported by the Kingdom of Spain, which annulled Article 1(1) of Commission Decision 1999/395/EC (1) of 28 October 1998 on State aid implemented by Spain in favour of Sniace SA, located in Torrelavega, Cantabria, as amended by Commission Decision 2001/43/EC (2) of 20 September 2000;

2.	In the new judgment to be delivered, grant all the forms of order which it sought at first instance and accordingly dismiss the action as inadmissible, or, in the alternative, as unfounded;

3.	Order the defendant to pay the costs under Article 69(2) of the Rules of Procedure.

Pleas in law and main arguments:

1.	According to the decision as amended in 2000, annulled by the judgment, the rescheduling agreement between Sniace and the General Social Security Fund and the rescheduling agreements concluded in 1993 and 1995 between Sniace and Fogasa did not constitute State aid.

2.	The judgment appealed against alleges that the General Social Security Fund and Fogasa not only concluded rescheduling agreements with Sniace, which was in financial difficulties, but also, and in particular, that they tolerated Sniace's failure to perform those agreements.

The grounds for the Kingdom of Spain's appeal against the abovementioned judgment are as follows:

—	Error in law, as the action was admitted on the assumption that the applicant was individually concerned, contrary to case-law according to which the applicant's position on the market must have substantially worsened.

—	Error in law in the interpretation and application of the private creditor test, since on the basis of the facts stated to be proven it was assumed that the conduct of the public institutions investigated did not fulfil the private creditor test.

(1) OJ L 149 of 16.6.1999, p. 40.

(2) OJ L 11 of 16.1.2001, p. 46.

19.3.2005

Official Journal of the European Union

C 69/5

Reference for a preliminary ruling by the Court of Cassation, Commercial, Financial and Economic Division, France by order of that court of 14 December 2004 in the case of Laboratoires Boiron S.A. against Agence centrale des organismes de sécurité sociale (Central Agency for Social Security Bodies)

(Case C-526/04)

(2005/C 69/11)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by order of the Court of Cassation, Commercial, Financial and Economic Division, France, of 14 December 2004, received at the Court Registry on 29 December 2004 for a preliminary ruling in the case of Laboratoires Boiron S.A. against Agence centrale des organismes de sécurité sociale on the following questions:

Must Community law be interpreted as meaning that a pharmaceutical laboratory liable to pay a contribution such as that under Article 12 of Law No 97-1164 of 19 December 1997 on social security funding for 1998 is, in order to obtain its repayment, entitled to plead that the fact that wholesale distributors are not liable for that contribution constitutes State aid?

If the answer to question 1 is in the affirmative and since the success of the claim for repayment may depend solely on evidence produced by the claimant, must Community law be interpreted as meaning that rules of national law, which make that repayment subject to proof by the claimant that the advantage received by the wholesale distributors exceeds the costs which they bear in discharging the public service obligations imposed on them by the national legislation or that the conditions laid down by the Court of Justice in Altmark are not satisfied, constitute rules of evidence which have the effect of making it practically impossible or excessively difficult to secure repayment of a mandatory contribution, such as that under Article 245-6-1 of the Social Security Code, which has been claimed before the competent authority, on the ground that the exemption from the contribution to which those wholesale distributors are entitled constitutes State aid which has not been notified to the Commission of the European Communities?

19.3.2005

Official Journal of the European Union

C 69/6

Reference for a preliminary ruling by the Corte d'Appello di Cagliari by order of that court of 12 November 2004 in the case of Gaetano Verdoliva against J.M. Van Der Hoeven B.N.

(Case C-3/05)

(2005/C 69/12)

Language of the case: Italian

Reference has been made to the Court of Justice of the European Communities by order of the Corte d'Appello di Cagliari (Italy) of 12 November 2004, received at the Court Registry on 6 January 2005, for a preliminary ruling in the case of Gaetano Verdoliva and J.M. Van Der Hoeven B.N. on the following questions:

—	‘Does the Brussels Convention provide its own definition of notice of procedural documents or is that concept left to be defined by national rules?

—	Can it be inferred from the rules of the Brussels Convention, and in particular from Article 36 thereof, that the decision authorising enforcement referred to in Article 36 of the Convention may be the subject of acts equivalent to service?

—

Does notice of the decision authorising enforcement, in cases of failure of, or defective, service, none the less cause time to run for the purposes of the time-limit referred to in that article? If not, is the Brussels Convention to be interpreted as limiting the ways in which there may be found to be notice of the decision authorising enforcement?’

19.3.2005

Official Journal of the European Union

C 69/6

Reference for a preliminary ruling by the Hoge Raad der Nederlanden of 7 January 2005 in the case of Staatssecretaris van Financiën v B.F. Joustra

(Case C-5/05)

(2005/C 69/13)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by judgment of 7 January 2005 of the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), which was received at the Court Registry on 10 January 2005, for a preliminary ruling in the case of Staatssecretaris van Financiën v B.F. Joustra on the following questions:

Must Article 8 of Council Directive 92/12/EEC (1) be construed as meaning that excise duty may not be levied other than in the Member State of acquisition in the case where an individual purchases goods subject to excise duty personally and for his own use in one Member State and has them transported by a transport undertaking to another Member State?

Must Article 8 of Council Directive 92/12/EEC be construed as meaning that excise duty may not be levied other than in the Member State of acquisition in the case where, as in the present, individuals arrange for goods subject to excise duty to be purchased in one Member State by another individual who is not operating commercially or with a view to making a profit and who arranges for the goods to be transported on behalf of the purchasers by a transport undertaking to another Member State?

If the answer to (one of) those questions should be in the negative: must Articles 7 and 9 of Council Directive 92/12/EEC be construed as meaning that, if an individual arranges for goods subject to excise duty which have been released for consumption in one Member State to be transported by a third party operating on his behalf to another Member State, where they are intended for his own personal requirements and for the personal requirements of others whom that individual also represents, that individual holds in that other Member State those goods subject to excise duty, that is to say, both those intended for his own use and those intended for the use of those other individuals, for commercial purposes within the terms of Articles 7 and 9 of the Directive, even if he is not acting commercially or with a view to making a profit?

4.	If the answer to Question 3 should be in the negative, does it follow from any other provision of Directive 92/12 that the individual referred to in Question 3 owes excise duty in the other Member State?

(1) Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1).

19.3.2005

Official Journal of the European Union

C 69/7

Reference for a preliminary ruling from the Simvoulio tis Epikratias by decision of that court of 17 November 2004 in Medipac — Th. Kazantzidis A.E. v Venizelio-Pananio (PE.S.I. Kritis)

(Case C-6/05)

(2005/C 69/14)

Language of the case: Greek

Reference has been made to the Court of Justice of the European Communities by decision of the Simvoulio tis Epikratias (Council of State, Greece) of 17 November 2004, received at the Court Registry on 5 January 2005, for a preliminary ruling in the proceedings between Medipac — Th. Kazantzidis A.E. and Venizelio-Pananio (PE.S.I. Kritis) on the following questions:

(1)

Whenever tender procedures governed by Council Directive 93/36/EEC for the supply of medical devices under Directive 93/42/EEC are conducted under the lowest-tender system, is the contracting authority as the purchaser of the relevant goods able, in accordance with Directive 93/42, interpreted in conjunction with Directive 93/36, to reject a tender for medical devices which bear the CE marking and have been the subject of a quality check by the competent certification body, as technically unacceptable at the stage of the technical assessment, in reliance upon sound objections relating to their adequacy in terms of quality which are connected with the protection of public health and the specific form of use for which those devices are intended and in view of which objections the devices are considered inappropriate and unfit for that use (with the self-evident precondition that those objections are subject to review of their validity by the court having jurisdiction if there is a dispute as to whether they pertain)?

(2)

If the preceding question is answered in the affirmative, is the contracting authority as the purchaser of the relevant goods able, for the foregoing reason, directly to consider medical devices which bear the CE marking unsuitable for the form of use for which they are intended, or must the safeguard clauses first be applied which are contained in Directive 93/42 and the abovementioned Joint Ministerial Decree DI7/ik.2480/1994 and which enable the relevant competent authority – which in Greece is the Ministry of Health, Welfare and Social Security acting through the Directorate for Biomedical Technology – to take measures either in accordance with the procedure in Article 8 of the directive, if correctly installed and maintained medical devices may jeopardise the life or safety of patients or users, or under Article 18 of the directive, if it is established that the CE marking has been affixed unduly?

(3)

In light of the answer to the second question, and in the event that the abovementioned safeguard clauses must first be applied, is the contracting authority obliged to await the outcome of the procedure initiated either under Article 8 or under Article 18 of Directive 93/42 and, further, is it bound by that outcome in the sense that it is obliged to procure the article in question even though its use demonstrably gives rise to risks for public health and generally it is unsuitable for the use for which the contracting authority intends it?

19.3.2005

Official Journal of the European Union

C 69/7

Reference for a preliminary ruling from the Cour Administrative (Grand Duchy of Luxembourg) by judgment of that court of 11 January 2005 in Cynthia Mattern and Hajrudin Cikotic v Ministre du travail et de l'emploi

(Case C-10/05)

(2005/C 69/15)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by judgment of the Cour administrative (Higher Administrative Court) (Grand Duchy of Luxembourg) of 11 January 2005, received at the Court Registry on 14 January 2005, for a preliminary ruling in the proceedings between Cynthia Mattern and Hajrudin Cikotic and the Ministre du travail et de l'emploi on the following question:

Do Community rules concerning freedom of movement for workers apply to the situation of a national of a non-member State married to a Community national who has attended a vocational training course and professional training in a Member State other than her own, and may the non-Community spouse therefore be exempt from the requirement to obtain a work permit on the basis of rules guaranteeing to Community nationals and members of their families who are non-member country nationals the right to freedom of movement as workers?

19.3.2005

Official Journal of the European Union

C 69/8

Reference for a preliminary ruling from Juzgado de lo Social No 33 by order of that court of 7 January 2005 in the case of Sonia Chacón Navas against Eurest Colectividades SA

(Case C-13/05)

(2005/C 69/16)

Language of the case: Spanish

Reference has been made to the Court of Justice of the European Communities by order of Juzgado de lo Social (Social Court) No 33 (Spain) of 7 January 2005, received at the Court Registry on 19 January 2005, for a preliminary ruling in the case of Sonia Chacón Navas against Eurest Colectividades SA on the following questions:

1.	Does Directive 2000/78 (1), in so far as Article 1 thereof lays down a general framework for combating discrimination on the grounds of disability, include within its protective scope an employee who has been dismissed by her employer solely because she is sick?

In the alternative, if it should be concluded that sickness does not fall within the protective framework which Directive 2000/78 lays down against discrimination on grounds of disability and the first question is answered in the negative, can sickness be regarded as an identifying attribute in addition to the ones in relation to which Directive 2000/78 prohibits discrimination?

(1) Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.

19.3.2005

Official Journal of the European Union

C 69/8

Reference for a preliminary ruling by the House of Lords, by order of that court dated 2 December 2004, in the case of The Queen on the application of 1) Veli Tum and 2) Mehmet Dari against Secretary of State for the Home Department

(Case C-16/05)

(2005/C 69/17)

Language of procedure: English

Reference has been made to the Court of Justice of the European Communities by order of the House of Lords, dated 2 December 2004, which was received at the Court Registry on 19 January 2005, for a preliminary ruling in the case of The Queen on the application of 1) Veli Tum and 2) Mehmet Dari against Secretary of State for the Home Department on the following question:

Is Article 41(1) of the Additional Protocol to the Association Agreement signed at Brussels on 23 November 1970 to be interpreted as prohibiting a Member State from introducing new restrictions, as from the date on which that Protocol entered into force in that Member State, on the conditions of and procedure for entry to its territory for a Turkish national seeking to establish himself in business in that Member State?

19.3.2005

Official Journal of the European Union

C 69/8

Reference for a preliminary ruling by the Court of Appeal (England & Wales) (Civil Division), by order of that court dated 11 January 2005, in the case of B.F. Cadman against Health & Safety Executive, Intervener: Equal Opportunities Commission

(Case C-17/05)

(2005/C 69/18)

Language of procedure: English

Reference has been made to the Court of Justice of the European Communities by order of the Court of Appeal (England & Wales) (Civil Division), dated 11 January 2005, which was received at the Court Registry on 19 January 2005, for a preliminary ruling in the case of B.F. Cadman and Health & Safety Executive, Intervener: Equal Opportunities Commission on the following questions:

Where the use by an employer of the criterion of length of service as a determinant of pay has a disparate impact as between relevant male and female employees, does Article 141 EC require the employer to provide special justification for recourse to that criterion? If the answer depends on the circumstances, what are those circumstances?

2)	Would the answer to the preceding question be different if the employer applies the criterion of length of service on an individual basis to employees so that an assessment is made as to the extent to which greater length of service justifies a greater level of pay?

3)	Is there any relevant distinction to be drawn between the use of the criterion of length of service in the case of part-time workers and the use of that criterion in the case of full-time workers?

19.3.2005

Official Journal of the European Union

C 69/9

Action brought on 25 January 2005 by the Commission of the European Communities against the Italian Republic

(Case C-21/05)

(2005/C 69/19)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 25 January 2005 by the Commission of the European Communities, represented by N. Yerrell and A. Aresu, acting as Agents.

The Commission claims that the Court should:

declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Council Directive 2000/79/EC of 27 November 2000 concerning the European Agreement on the Organisation of Working Time of Mobile Workers in Civil Aviation concluded by the Association of European Airlines (AEA), the European Transport Workers' Federation (ETF), the European Cockpit Association (ECA), the European Regions Airline Association (ERA) and the International Air Carrier Association (IACA) (1), or in any event by not communicating the same to the Commission, the Italian Republic has failed to fulfil its obligations under Article 3 of that directive;

2.	order the Italian Republic to pay the costs.

Pleas in law and main arguments

The time-limit for the transposition of the directive expired on 1 December 2003.

(1) OJ L 302, 1.12.2000, p. 57.

19.3.2005

Official Journal of the European Union

C 69/9

Appeal brought on 26 January 2005 (fax: 24 January 2005) by August Storck KG against the judgment delivered on 10 November 2004 by the Court of First Instance of the European Communities (Fourth Chamber) in Case T-396/02 August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-24/05 P)

(2005/C 69/20)

Language of the case: German

An appeal against the judgment delivered on 10 November 2004 by the Court of First Instance of the European Communities (Fourth Chamber) in Case T-396/02 August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of Justice of the European Communities on 26 January 2005 (fax: 24 January 2005) by August Storck KG, represented by Ilse Rohr, Heidi Wrage-Molkenthin and Tim Reher, Rechtsanwälte, CMS Hasche Sigle, Stadthausbrücke 1-3, D-20355 Hamburg.

The appellant claims that the Court should:

1.	set aside the judgment of the Court of First Instance (Fourth Chamber) of 10 November 2004 in Case T-396/02; (1)

2.	grant the forms of order sought at first instance and give final judgment on the dispute or, in the alternative, remit the case to the Court of First Instance;

3.	order OHIM to pay the costs of the proceedings.

Pleas on appeal and main arguments:

1. Breach of Article 7(1)(b) of Regulation No 40/94

The Court of First Instance erred in law by requiring that the mark applied for must differ substantially from other comparable marks in the relevant product market. The distinctive character of the mark should instead be examined on its own merits, without reference to any similar marks on the market.

The mark applied for possesses inherent distinctiveness. The fact that consumers recognise the mark as a sweet does not prevent it from simultaneously having the function of an indication of trade origin. The colour three-dimensional mark serves as a signal and a recognition factor, especially in cases where the consumer is confronted with a very large choice, as in the confectionery market.

2. Breach of the first sentence of Article 74(1) of Regulation No 40/94

Contrary to the view of the Court of First Instance, the Office should have examined and explained which similar or identical marks exist on the market – as it claims – if it seeks thereby to justify its refusal to register the mark. The Office may not base its decision on facts which have not been proved and which it merely presumes. If the Office considers it necessary – which the appellant does not – to measure the distinctiveness of the mark against other sweet designs available on the market, it must examine that market situation.

Likewise, the Court of First Instance may not itself rule on facts which have not been examined.

3. Breach of Article 73 of Regulation No 40/94

In order to justify its finding that the mark applied for is devoid of distinctiveness, the Office relies on similar sweet designs which it claims exist on the market. The appellant has had no opportunity to express a view on those sweet designs allegedly existing on the market, since they have not been produced by the Office.

The appellant's right to a fair hearing has thereby been infringed.

4. Breach of Article 7(3) of Regulation No 40/94

The objection of the Court of First Instance that the proof of use adduced does not demonstrate the exact use of the mark applied for, since that mark is accompanied by other marks, should be dismissed. By its nature, the three-dimensional mark appears along with other marks. The mark cannot be held to be devoid of distinctive character on the basis of that fact alone.

The dual function of a colour three-dimensional mark consisting of the shape of the product itself does not mean that it is not used as a mark even if, at the same time, it provides information about the design of the product.

In the context of proof of use, account is to be taken of all contact that the consumer has with the mark. The extent to which the consumer encounters the mark before or at the time of making his decision to purchase is not the sole determinant of proof of use. When the mark is noticed at a later point, in particular at the time when the product is consumed, this also contributes to its recognition.

(1) OJ C 19, 22.1.2005.

19.3.2005

Official Journal of the European Union

C 69/10

Appeal brought on 26 January 2005 (fax: 24 January 2005) by August Storck KG against the judgment delivered on 10 November 2004 by the Court of First Instance of the European Communities (Fourth Chamber) in Case T-402/02 August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-25/05 P)

(2005/C 69/21)

Language of the case: German

An appeal against the judgment delivered on 10 November 2004 by the Court of First Instance of the European Communities (Fourth Chamber) in Case T-402/02 August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of Justice of the European Communities on 26 January 2005 (fax: 24 January 2005) by August Storck KG, represented by Ilse Rohr, Heidi Wrage-Molkenthin and Tim Reher, Rechtsanwälte, CMS Hasche Sigle, Stadthausbrücke 1-3, D-20355 Hamburg.

The appellant claims that the Court should:

1.	set aside the judgment of the Court of First Instance (Fourth Chamber) of 10 November 2004 in Case T-402/02; (1)

2.	grant the forms of order sought at first instance and give final judgment on the dispute or, in the alternative, remit the case to the Court of First Instance;

3.	order OHIM to pay the costs of the proceedings.

Pleas on appeal and main arguments:

1. Breach of Article 7(1)(b) of Regulation No 40/94

In any event, the public interest or a need to preserve the availability [of a mark] are not to be taken into consideration within the context of Article 7(1)(b) of Regulation No 40/94. The monopolisation of marks as such is intended by trade mark law. There is no evidence of an unjustified monopolisation.

The Office has not relied on other grounds of refusal in the context of which the public interest could be taken into consideration, in particular the grounds of refusal provided for under Article 7(1) (d) to (j) of Regulation No 40/94.

The mark applied for possesses inherent distinctiveness. The fact that consumers recognise the mark as a sweet wrapper does not prevent it from simultaneously having the function of an indication of trade origin. The colour three-dimensional mark serves as a signal and a recognition factor, especially in cases where the consumer is confronted with a very large choice, as in the confectionery market.

2. Breach of the first sentence of Article 74(1) of Regulation No 40/94

Contrary to the view of the Court of First Instance, the Office should have examined and explained which similar or identical marks exist on the market – as it claims – if it seeks thereby to justify its refusal to register the mark. The Office may not base its decision on facts which have not been proved and which it merely presumes. If the Office considers it necessary – which the appellant does not – to measure the distinctiveness of the mark against sweet wrappers available on the market, it must examine that market situation.

3. Breach of Article 73 of Regulation No 40/94

In order to justify its finding that the mark applied for is devoid of distinctiveness, the Office relies on similar sweet wrappers which it claims exist on the market. The appellant has had no opportunity to express a view on those sweet wrappers allegedly existing on the market, since they have not been produced by the Office.

The appellant's right to a fair hearing has thereby been infringed.

4. Breach of Article 7(3) of Regulation No 40/94

The mark applied for has at least acquired distinctiveness through its extensive use in the EC. The evidence relating to sales volumes and advertising expenditure for goods designated by that mark should have been taken into account even in the absence of comparative figures concerning the sweet market as a whole which the Office required.

Contrary to the view expressed by the Office and the Court of First Instance, it is not necessary to adduce evidence for all Member States of the EC that the mark has become distinctive in consequence of the use that has been made of it. In the light of the objective of establishing a single market in all Member States of the EC, it is appropriate to analyse the dissemination and recognition of the mark applied for within the territory of the EC, without regard to national borders. Consequently, the evidence of use adduced by the appellant is sufficient to form the basis for a finding that the mark has distinctive character in the EC.

(1) OJ C 19, 22.1.2005.

19.3.2005

Official Journal of the European Union

C 69/12

Action brought on 31 January 2005 by the Commission of the European Communities against the Kingdom of Spain

(Case C-36/05)

(2005/C 69/22)

Language of the case: Spanish

An action against the Kingdom of Spain was brought before the Court of Justice of the European Communities on 31 January 2005 by the Commission of the European Communities, represented by Ramón Vidal and Wouter Wils, of its Legal Service.

The Commission claims that the Court should:

declare that, by exempting lending by almost all, if not all, categories of establishments from the obligation to pay a remuneration to authors for the public lending of works protected by copyright, the Kingdom of Spain has failed to fulfil its obligations under Articles 1 and 5 of Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (1);

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

Pleas in law and main arguments

Article 1 of Directive 92/100/EEC imposes a duty on Member States to accord authors the exclusive right to authorise or prohibit the lending of his works. Article 5(1) of the Directive provides that the Member States may derogate from that exclusive right, provided that authors at least obtain a remuneration for unauthorised lending. In accordance with Article 5(3) of the Directive, Member States may ‘exempt’ from payment of that remuneration only ‘certain categories of establishments’.

Articles 17 and 19 of the Ley de Propriedad Intelectual (Law on Intellectual Property) (‘LPI’) recognise, in principle, the exclusive right of authors to authorise lending of their works. However, Article 37.2 of the LPI renders that right meaningless, by exempting practically every, if not all lending from the obligation to obtain the authors' prior authorisation and the obligation to pay a remuneration. On those grounds, the Commission takes the view that Article 37.2 of the LPI is contrary to the Kingdom of Spain's obligations under Articles 1, 5(1) and 5(3) of the Directive.

(1) OJ L 346, de 27.11.1992, p. 61.

19.3.2005

Official Journal of the European Union

C 69/13

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 18 January 2005

in Case T-141/01 Entorn, Societat Limitada Enginyeria i Serveis v Commission of the European Communities (1)

(EAGGF - Financial participation in a demonstration project concerning the introduction of new cultivation techniques in sumac production - Cancellation of financial assistance from the fund)

(2005/C 69/24)

Language of the case: Spanish

In Case T-141/01: Entorn, Societat Limitada Enginyeria i Serveis, established in Barcelona (Spain), represented by M. Belard-Kopke Marques-Pinto and C. Viñas Llebot, lawyers, with an address for service in Luxembourg, against the Commission of the European Communities (Agents: S. Pardo and L. Visaggio, with an address for service in Luxembourg) – action for annulment of Commission Decision C(1999) 534 of 4 March 1999 cancelling the financial assistance of the Guidance Section of the European Agriculture Guidance and Guarantee Fund (EAGGF) initially granted to the applicant by Decision C(93)3394 of 26 November 1993, in accordance with Council Regulation (EEC) No 4256/88 of 19 December 1988 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards the EAGGF Guidance Section (OJ 1988 L 374, p. 25), for the financing of a demonstration project concerning the introduction of new cultivation techniques in sumac production (Project No 93.ES.06.030) – the Court of First Instance (Second Chamber), composed of N.J. Forwood, President, J. Pirrung and A.W.H. Meij, Judges; J. Palacio González, Principal Administrator, for the Registrar, gave a judgment on 18 January 2005, in which it:

1.	Dismisses the action.

2.	Orders the applicant to bear its own costs and those incurred by the Commission, including those incurred in the proceedings for interim relief.

(1) OJ C 289 of 13.10.2001.

19.3.2005

Official Journal of the European Union

C 69/13

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 18 January 2005

in Case T-93/02: Confédération nationale du Crédit Mutuel v Commission of the European Communities (1)

(State aid - Measures taken by the French Republic for Crédit Mutuel - Livret bleu - Decision 2003/216/EC - Duty to state reasons - Action for annulment)

(2005/C 69/25)

Language of the case: French

In Case T-93/02: Confédération nationale du Crédit Mutuel, established in Paris (France), represented by A. Carnelutti and J.-P. Gunther, lawyers, supported by French Republic (Agents: G. de Bergues and F. Million, with an address for service in Luxembourg), against Commission of the European Communities (Agent: G. Rozet, with an address for service in Luxembourg) — action for annulment of Commission Decision 2003/216/EC of 15 January 2002 on State aid granted by France to Crédit Mutuel (OJ 2003 L 88, p. 39), in the form of excess compensation for collection and management costs of regulated savings under the ‘Livret bleu’ system — the Court of First Instance (Second Chamber, Extended Composition), composed of J. Pirrung, President, V. Tiili, A.W.H. Meij, M. Vilaras and N.J. Forwood, Judges, J. Palacio González, Principal Administrator, for the Registrar; has given a judgment on 18 January 2005, in which it:

1.	Annuls Commission Decision 2003/216 EC of 15 January 2002 on State aid granted by the French Republic to Crédit Mutuel;

2.	Orders the Commission to bear its own costs and to pay the applicant's costs;

3.	Orders the French Republic to bear its own costs.

(1) OJ C 131 of 1.6.2002.

19.3.2005

Official Journal of the European Union

C 69/14

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 12 January 2005

in Joined Cases T-367/02 to T-369/02: Wieland-Werke AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Word marks SnTEM, SnPUR and SnMIX - Absolute grounds for refusal - Descriptive nature - Article 7(1)(c) of Regulation (EC) No 40/94)

(2005/C 69/26)

Language of the case: German

In Joined Cases T-367/02 to T-369/02: Wieland-Werke AG, established at Ulm (Germany), represented by S. Gruber and F. Graf von Stosch, lawyers, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: T.L. Eichenberg and G. Schneider) — applications for annulment of three decisions of the First Board of Appeal of the OHIM of 25 September 2002 (Cases R 338/2001-1, R 337/2001-1 and R 335/2001-1), concerning applications for registration of word marks SnTEM, SnPUR and SnMIX as Community trade marks — the Court of First Instance (Fourth Chamber), composed of H. Legal, President, V. Tiili and M. Vilaras, Judges; D. Christensen, Administrator, for the Registrar, has given a judgment on 12 January 2005, in which it:

1.	Dismisses the actions in their entirety;

2.	Orders the applicant to pay the costs.

(1) OJ C 55 of 8.3.2003.

19.3.2005

Official Journal of the European Union

C 69/14

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 12 January 2005

in Case T-334/03: Deutsche Post EURO EXPRESS GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - EUROPREMIUM - Absolute ground for refusal - Descriptive nature - Article 7(1)(c) of Regulation (EC) No 40/94)

(2005/C 69/27)

Language of the case: German

In Case T-334/03: Deutsche Post EURO EXPRESS GmbH, represented initially by G. Lindhofer and subsequently by K.-U. Jonas, lawyers, with an address for service in Luxembourg, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: initially by U. Pfleghar and G. Schneider and subsequently by A. von Mühlendahl and G. Schneider) — action against the decision of the Fourth Board of Appeal of OHIM of 20 June 2003 (Case R 348/2002-4) regarding registration of the sign EUROPREMIUM as a Community trade mark — the Court of First Instance (Third Chamber), composed of J. Azizi, President, M. Jaeger and O. Czúcz, Judges; B. Pastor, Deputy Registrar, for the Registrar, has given a judgment on 12 January 2005, in which it:

1.	Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 June 2003 (Case R 348/2002-4);

2.	Orders the defendant to pay the costs.

(1) OJ C 289 of 29.11.2003.

19.3.2005

Official Journal of the European Union

C 69/14

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 19 January 2005

in Case T-387/03: Proteome Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Word mark BIOKNOWLEDGE - Absolute grounds for refusal - Article 7(1)(c) of Regulation (EC) No 40/94 - Descriptive sign)

(2005/C 69/28)

Language of the case: English

In Case T-387/03: Proteome Inc., established at Beverly, Massachusetts (United States), represented by M. Edenborough, Barrister, C. Jones, A. Brodie and C. Loweth, Solicitors, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: P. Bullock and S. Laitinen) — action brought against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 25 August 2003 (Case R 0707/2002-4), and the examiner's decision of 21 June 2002 refusing registration of the word mark BIOKNOWLEDGE — the Court of First Instance (Third Chamber), composed of J. Azizi, President, M. Jaeger and F. Dehousse, Judges; H. Jung, Registrar, has given a judgment on 19 January 2005, in which it:

1.	Dismisses the action;

2.	Orders the applicant to pay the costs.

(1) OJ C 21 of 24.1.2004.

19.3.2005

Official Journal of the European Union

C 69/15

ORDER OF THE COURT OF FIRST INSTANCE

of 10 December 2004

in Case T-196/03: European Federation for Cosmetic Ingredients (EFfCI) v European Parliament and Council of the European Union (1)

(Manifest inadmissibility - Concept of measure of individual concern to an applicant - European Economic Interest Group - Contracts being performed - Intellectual property rights)

(2005/C 69/29)

Language of the case: English

In Case T-196/03: European Federation for Cosmetic Ingredients (EFfCI), established in Brussels (Belgium), represented by K. Van Maldegem and C. Mereu, Lawyers, against European Parliament (Agents: J. L. Rufas Quintana, M. Moore and K. Bradley, with an address for service in Luxembourg) and Council of the European Union (Agents: E. Karlsson and C. Giorgi Fort), application for the annulment of:

—

Article 1(2) of Directive 2003/15/EC of the European Parliament and of the Council of 27 February 2003, amending Council Directive 76/768/EEC on the approximation of the laws of the Member States relating to cosmetic products (OJ 2003 L 66, p. 26), in so far as it inserts in Directive 76/768 a new Article 4a(2) and (2.1) and a new Article 4b,

—	Article 1(5) of Directive 2003/15, in so far as it adds a new subparagraph to Article 6(3) of Directive 76/768,

the Court of First Instance (Third Chamber), composed of J. Azizi, President, M. Jaeger and F. Dehousse, Judges; H. Jung, Registrar, has given a judgment on 10 December, the operative part of which is as follows:

1.	The application is dismissed.

2.	The applicant is ordered to bear its own costs and to pay those of the defendants.

(1) OJ C 184 of 2.8.2003.

19.3.2005

Official Journal of the European Union

C 69/15

ORDER OF THE COURT OF FIRST INSTANCE

of 10 December 2004

in Case T-261/03 Euro Style 94 Srl v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Opposition procedure - Application for figurative Community trade mark including the verbal element ‘GLOVE’ - National and international figurative and verbal marks ‘GLOBE’ - Relative ground for refusal - Article 8(1)(b) of Regulation No 40/94 - Action clearly devoid of legal foundation)

(2005/C 69/30)

Language of the case: English

In Case T-269/04, Euro Style 94 Srl, established in Baretta (Italy), represented by G. Pica, lawyer, with an address for service in Luxembourg, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: J. Laporta Insa and A. Folliard-Monguiral), the other party to the proceedings before the Board of Appeal of the OHIM being RCN-Companhia de Importacao e Esportacao de Texteis, LDA, established in Oeiras (Portugal); appeal against the decision of the Second Board of Appeal of the OHIM of 19 May 2003 (Case R 67/2001-2), concerning an opposition procedure between RCN-Companhia de Importacao e Esportacao and Eurostyle 94 Srl, the Court of First Instance (Second Chamber), composed of J. Pirrung, President, N.J. Forwood and S.S. Papasavvas, Judges; Registrar, H. Jung, made an order on 10 December 2004, the operative part of which is as follows:

1	The appeal is dismissed.

2	The appellant is ordered to bear the costs.

(1) OJ C 264 of 1.11.2003

19.3.2005

Official Journal of the European Union

C 69/16

ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

of 22 December 2004

in Case T-201/04 R Microsoft Corporation v Commission of the European Communities

(Proceedings for interim relief - Article 82 EC)

(2005/C 69/31)

Language of the case: English

In Case T-201/04 R: Microsoft Corporation, established in Redmond, Washington (United States), represented by J.-F. Bellis, lawyer, and I.S. Forrester QC, supported by The Computing Technology Industry Association, Inc., established in Oakbrook Terrace, Illinois (United States), represented by G. van Gerven and T. Franchoo, lawyers, and B. Kilpatrick, Solicitor, Association for Competitive Technology, Inc., established in Washington, DC (United States), represented by L. Ruessmann and P. Hecker, lawyers, TeamSystem SpA, established in Pesaro (Italy) and Mamut ASA, established in Oslo (Norway), both represented by G. Berrisch, lawyer, DMDsecure.com BV, established in Amsterdam (Netherlands), MPS Broadband AB, established in Stockholm (Sweden), Pace Micro Technology plc, established in Shipley, West Yorkshire (United Kingdom), Quantel Ltd, established in Newbury, Berkshire (United Kingdom) and Tandberg Television Ltd, established in Southampton, Hampshire (United Kingdom), all represented by J. Bourgeois, lawyer, Exor AB, established in Uppsala (Sweden), represented by S. Martínez Lage, H. Brokelmann and R. Allendesalazar Corcho, lawyers against Commission of the European Communities (Agents: R. Wainwright, W. Mölls, F. Castillo de la Torre and P. Hellström), supported by RealNetworks, Inc., established in Seattle, Washington (United States), represented by A. Winckler, M. Dolmans and T. Graf, lawyers, Software & Information Industry Association, established in Washington, DC, represented by C.A. Simpson, Solicitor, Free Software Foundation Europe eV, established in Hamburg (Germany), represented by C. Piana, lawyer — application for suspension of the operation of Articles 4, 5(a) to (c) and 6(a) of Commission Decision C(2004) 900 final of 24 March 2004 relating to a proceeding under Article 82 EC (Case COMP/C-3/37.792 Microsoft) — the President of the Court of First Instance has made an order on 22 December 2004, the operative part of which is as follows:

1.	The request for confidential treatment submitted by Microsoft Corporation is granted at the interim measures stage.

2.	Audiobanner.com, trading as VideoBanner, is granted leave to intervene in support of the form of order sought by the Commission in the interim measures proceedings.

3.	The Computer & Communications Industry Association is removed from the case as intervener in support of the form of order sought by the Commission in the interim measures proceedings.

4.	Novell Inc. is removed from the case as intervener in support of the form of order sought by the Commission in the interim measures proceedings.

5.	The application for interim measures is dismissed.

6.	Costs are reserved.

19.3.2005

Official Journal of the European Union

C 69/16

ORDER OF THE COURT OF FIRST INSTANCE

of 13 December 2004

in Case T-269/04 IDOM SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Withdrawal of application for registration - No need to adjudicate)

(2005/C 69/32)

Language of the case: Spanish

In Case T-269/04, IDOM SA, established in Bilbao, Spain, represented by Tatiana Villate Consonni, lawyer, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agent: Ignacio de Medrano Caballero), the other party to the proceedings before the Board of Appeal of the OHIM being IDOM Inc., established in New Jersey (United States), represented by Fry Heath and Spence LLP, lawyers; appeal against the decision of the Second Board of Appeal of the OHIM of 27 April 2004 (Case R 153/2003-2), concerning registration of the sign IDOM as a Community trade mark, the Court of First Instance (Fifth Chamber), composed of M. Vilaras, President, M.E. Martins Ribeiro and K. Jürimäe, Judges; Registrar, H. Jung, made an order on 13 December 2004, the operative part of which is as follows:

1.	There is no further need to adjudicate on the appeal

2.	Each party is ordered to bear its own costs.

(1) OJ C 217 of 28.8.2004.

19.3.2005

Official Journal of the European Union

C 69/17

ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

of 10 November 2004

in Case T-303/04 R, European Dynamics SA v Commission of the European Communities

(Public service contracts - Community tender procedure - Interim measures - Application for suspension of operation - Urgency - None)

(2005/C 69/33)

Language of the case: English

In Case T-303/04 R, European Dynamics SA, established in Athens (Greece), represented by S. Pappas, lawyer, against Commission of the European Communities (Agents: L. Parpala and E. Manhaeve, and J. Stuyck, lawyer, with an address for service in Luxembourg) — application for suspension of operation of, first, the Commission's decision of 4 June 2004 (DIGIT/R2/CTR/mas D(2004) 324) to rank only in second place the offer submitted by the consortium of which the applicant is a member following a call for tenders for the provision of informatics services and, second, the Commission's decision of 14 July 2004 (DG DIGIT/R2/CTR/mas D(2004) 811) rejecting the applicant's complaints of 21 June, 1, 5 and 8 July 2004 against the award of the contract to another consortium — the President of the Court of First Instance has made an order on 10 November 2004, the operative part of which is as follows:

1.	The application for interim measures is dismissed.

2.	Costs are reserved.

19.3.2005

Official Journal of the European Union

C 69/17

Action brought on 30 November 2004 by HEG Limited and Graphite India Limited against the Council of the European Union

(Case T-462/04)

(2005/C 69/34)

Language of the case: English

An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 30 November 2004 by HEG Limited, New Delhi, India and Graphite India Limited, Kolkata, India, represented by Dr K. Adamantopoulos, lawyer and J. Branton, Solicitor.

The applicants claim that the Court should:

—

declare, pursuant to Article 230 EC, that Council Regulation Council Regulation (EC) No 1628/2004 (1) of 13 September 2004 imposing a definitive countervailing duty and collecting definitively the provisional duty imposed on imports of certain graphite electrode systems originating in India is null and void;

—	declare, pursuant to Article 230 EC, that Council Regulation (EC) No 1629/2004 (2) of 13 September 2004 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain graphite electrode systems originating in India is null and void;

—	order the costs of and occasioned by these proceedings be borne by the defendant.

Pleas in law and main arguments

Following complaints introduced on behalf of Community producers of graphite electrodes, the Commission initiated parallel anti-subsidy and anti-dumping proceedings against imports of the product concerned from India. These proceedings led to the adoption of the contested regulation.

The applicants are two Indian companies which manufacture and export the product concerned to the European Union. In support of their application they submit first of all that the Commission services and finally the Council failed to investigate other obvious sources of injury, namely dumped imports from other third countries, even when presented with strong evidence of them by Indian exporters. On this basis the applicants invoke a violation of Article 9 paragraph 5 of Regulation 384/96 (3) and of Article 9 paragraph 2 of the Agreement on Implementation of Article VI of the GATT (Anti-dumping agreement), a violation of the principle of non-discrimination and of fundamental procedural requirements and a manifest error of assessment.

The applicants further submit that both contested regulations are vitiated by the infringement of fundamental procedural requirements provided by Regulation 2026/97 (4) and Regulation 384/96 respectively as well as by the Anti-dumping agreement and the Agreement on subsidies and countervailing measures, having imposed anti-dumping and countervailing measures on the basis of a Community of 25 Member States even though the investigation was initiated and conducted on the basis of a 15 Member States.

The applicants also contend that Regulation 1628/2004 imposes countervailing duties in inappropriate amounts in respect of the Indian DEPB post-export scheme thus violating Regulation 2026/97, the Agreement on subsidies and countervailing measures and the principle of proportionality, committing a manifest error of assessment and breaching fundamental procedural requirements.

The applicants also invoke violations of Regulations 2026/97 and 384/96 respectively, of the anti-dumping agreement and the Agreement on subsidies and countervailing measures, as well as a manifest error of assessment, contending that the contested measures base material injury determination on data made unreliable by the existence of anti-competitive market sharing and price fixing agreements between the members of the Community industry, confirmed and sanctioned by a decision of the Commission itself.

Finally, the applicants contend that the contested measures respectively violate Article 3 paragraph 2 of Regulation 384/96 and Article 8 paragraph 7 of Regulation 2026/97 in failing to remove the effects of other factors in determining its final injury analysis and thereby attributing injury caused by other factors to Indian imports.

(1) OJ L 295, 18.9.2004, p. 4.

(2) OJ L 295, 18.9.2004, p. 10.

(3) Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community, OJ L 56, 6.3.1996, p. 1.

(4) Council Regulation (EC) No 2026/97 of 6 October 1997 on protection against subsidized imports from countries not members of the European Community, OJ L 288, 21.10.1997, p. 1.

19.3.2005

Official Journal of the European Union

C 69/18

Action brought on 19 November 2004 by Elisabetta Dami against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-466/04)

(2005/C 69/35)

Language in which the application was submitted: French

The Stilton Cheese Makers Association was also a party to the proceedings before the Second Board of Appeal.

The applicant claims that the Court should:

—	establish that the letter of 4 June 2004, sent to the Office and signed jointly does not contain a statement intended to bring an end to the proceedings before the Board of Appeal, but is only an application for a stay of proceedings;

—	annul the decision of the Second Board of Appeal of the Office of 20 September 2004 in Case R 973/2002-2 and refer the case back to the Board of Appeal;

—	order the Office to pay the costs.

Pleas in law and main arguments

Applicant for Community trade mark:	The applicant
Community trade mark sought:	Word mark ‘GERONIMO STILTON’ for goods and/or services in Class 16 (books etc.), Class 25 (clothing etc.), Class 28 (games etc.), Class 29 (meat etc.), Class 30 (cake dough etc.) and Class 41 (services rendered in the field of education etc.) – Application No 1345503
Proprietor of mark or sign cited in the opposition proceedings:	The Stilton Cheese Makers Association
Mark or sign cited in opposition:	National word mark ‘STILTON’; registered designations of origin WHITE STILTON CHEESE and BLUE STILTON CHEESE
Decision of the Opposition Division:	Opposition allowed for Classes 29 and 30
Decision of the Board of Appeal:	The Board of Appeal held that as a result of amendments to the specification of the relevant goods, in accordance with a joint letter from the parties of 4 June 2004, the opposition had been withdrawn and the proceedings had therefore been terminated. Since according to the Board of Appeal, the only question to be decided was the allocation of costs, each party was ordered to bear the fees and expenses of the opposition and appeal proceedings which it had itself incurred.
Pleas in law:	In support of its application, the applicant submits that the letter of 4 June 2004 contained only an application for a stay of the proceedings in order to allow the parties to resolve between themselves the issue, which is still in dispute, namely which other goods apart from dairy products and cheese should be removed from Class 29 in order to enable the party in opposition to withdraw its opposition. The Board of Appeal erred in holding that the applicant, having accepted the application for a stay of proceedings, had agreed to what the party in opposition was requesting.

19.3.2005

Official Journal of the European Union

C 69/19

Action brought on 19 November 2004 by Elisabetta Dami against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-467/04)

(2005/C 69/36)

Language in which the application was submitted: French

The Stilton Cheese Makers Association was also a party to the proceedings before the Second Board of Appeal.

The applicant claims that the Court should:

—	establish that the letter of 4 June 2004, sent to the Office and signed jointly does not contain a statement intended to bring an end to the proceedings before the Board of Appeal, but is only an application for a stay of proceedings;

—	annul the decision of the Second Board of Appeal of the Office of 20 September 2004 in Case R 982/2002-2 and refer the case back to the Board of Appeal;

—	order the Office to pay the costs.

Pleas in law and main arguments

Applicant for Community trade mark:	The applicant
Community trade mark sought:	Word mark ‘GERONIMO STILTON’ for goods and/or services in Class 16 (books etc.), Class 25 (clothing etc.), Class 28 (games etc.), Class 29 (meat etc.), Class 30 (cake dough etc.) and Class 41 (services rendered in the field of education etc.) – Application No 1345503
Proprietor of mark or sign cited in the opposition proceedings:	The Stilton Cheese Makers Association
Mark or sign cited in opposition:	National word mark ‘STILTON’; registered designations of origin WHITE STILTON CHEESE and BLUE STILTON CHEESE
Decision of the Opposition Division:	Opposition allowed for Classes 29 and 30
Decision of the Board of Appeal:	The Board of Appeal held that as a result of amendments to the specification of the relevant goods in accordance with a joint letter from the parties of 4 June 2004, the opposition had been withdrawn and the proceedings had therefore been terminated. Since according to the Board of Appeal the only question to be decided was the allocation of costs, each party was ordered to bear the fees and expenses of the opposition and appeal proceedings which it had itself incurred.
Pleas in law:	The pleas relied on are identical to those put forward in Case T-466/04 brought by the same applicant.

19.3.2005

Official Journal of the European Union

C 69/20

Action brought on 24 November 2004 by Bouygues SA and Bouygues Télécom against the Commission of the European Communities

(Case T-475/04)

(2005/C 69/37)

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 24 November 2004 by Bouygues SA, established in Paris, and Bouygues Télécom, established in Boulogne-Billancourt (France), represented by Louis Vogel, Joseph Vogel, Bernard Amory, Alexandre Verheyden, François Sureau and Didier Théophile, lawyers.

The applicants claim that the Court should:

1.	annul Commission decision C(2004)2647 of 20 July 2004 – State aid – France concerning alteration of the fees payable by Orange and SFR for the Universal Mobile Telecommunication System (UMTS) licences;

2.	order the Commission to pay the costs.

Pleas in law and main arguments

This action is brought against Commission decision C(2004)2647 final of 20 July 2004 concluding that aid was not granted by the French State to Orange France and SFR by way of the retroactive reduction in the fee of EUR 4 995 000 000 which each of those operators had undertaken to pay to the French State for the Universal Mobile Telecommunication System (UMTS) licence awarded to it on 18 July 2001. By the adoption of that decision, the complaint lodged by the applicant companies was rejected.

It is recalled in that regard that the French Government issued two invitations to apply for the award of the UMTS licences. The first, in which Orange France and SFR participated, was launched in August 2000. The amount of the fee had been set at EUR 4 995 000 000 per licence. Bouygues Télécom had decided not to compete on account of the price set. In the second invitation to apply, the amount of the fee was reduced to EUR 619 000 000. Bouygues Télécom was awarded a UMTS licence following that second procedure. However, in the meantime, the French Government decided to align retroactively the amount of the fees provided for in the first procedure with that provided for in the second invitation to apply.

In support of their claims, the applicants plead, first, infringement of Article 87 of the Treaty. They argue in that regard that:

—	State licence fees are public revenue and that the French State, by altering retroactively the amount of the fees payable by Orange and SFR, waived its right to collect a debt in an immediately available form, payable and of a fixed amount;

—

By relying on the consideration that the contested decision is justified by the principle of non-discrimination, the Commission avoided discussion of the substance of the issue. It is argued inter alia in that regard that Orange and SFR were able, through the effect of the French Government's decision, to enjoy a temporal advantage arising from the possibility of penetrating the UMTS market early while being guaranteed, even though nothing had been envisaged to that effect during the first invitation to apply, that the amount of their UMTS licence fee would be reduced to the level of that required in respect of the second invitation to apply;

—	The decision at issue had a real effect on competition by enabling Orange and SFR, which were already powerful operators on the French mobile telephony market, to consolidate their position on the emerging UMTS market and, as a result, to restrict the access of their competitors to that market.

In addition, the applicants submit that, by merely stating, without any further explanation, that the award of the UMTS licences cannot be treated as a market transaction, the defendant, in breach of Article 230 of the Treaty, failed to state proper reasons for its decision.

Finally, the applicants submit that the Commission infringed Articles 87 and 88 EC by not examining the measure at issue by way of the formal review procedure laid down by those provisions.

19.3.2005

Official Journal of the European Union

C 69/21

Action brought on 14 December 2004 by Aktieselskabet af 21. November 2001 against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-477/04)

(2005/C 69/38)

Language in which the application was lodged: English

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 14 December 2004 by Aktieselskabet af 21. November 2001, established in Brande (Denmark), represented by C. Barrett Christiansen, lawyer.

TDK Kabushiki Kaisha (TDK Corporation), established in Tokyo (Japan), was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

—	Annul Decision R 364/2003-1 of 7 October 2004 of the First Board of Appeal of the Office for Harmonisation in the Internal Market

Pleas in law and main arguments:

Applicant for Community trade mark:	The applicant
Community trade mark concerned:	Word mark TDK for goods in class 25 (clothing, footwear, headgear) — application number 1214675
Proprietor of mark or sign cited in the opposition proceedings:	TDK Kabushiki Kaisha
Trade mark or sign cited in opposition:	Community and national word and figurative marks TDK for goods in Class 9 (apparatus for recording etc.)
Decision of the Opposition Division:	Registration denied
Decision of the Board of Appeal:	Appeal dismissed
Pleas in law:	Article 8 paragraph 5 of Council Regulation No 40/94 does not apply in this case.

19.3.2005

Official Journal of the European Union

C 69/21

Action brought on 8 December 2004 by Armour Pharmaceutical Company against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-483/04)

(2005/C 69/39)

Language in which the application was submitted: French

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 8 December 2004 by Armour Pharmaceutical Company, established in Bridgewater (United States), represented by Richard Gilbey, lawyer.

Teva Pharmaceutical Industries Limited was also a party to the proceedings before the Fourth Board of Appeal.

The applicant claims that the Court should:

1.	annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 September 2004 (Case R 295/2003-4) and confirm the decision of the Opposition Division of 28 February 2003 by upholding the opposition in its entirety;

2.	order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark:	Teva Pharmaceuticals Industries Limited
Community trade mark concerned:	The word mark ‘GALZIN’ for goods in Class 5 (pharmaceutical preparations for the treatment of Wilson's disease – Application No 1 606 102)
Proprietor of the mark or sign cited in the opposition proceedings:	The applicant
Mark or sign cited in opposition:	The national word mark ‘CALSYN’ for products in Class 5 (pharmaceutical and medical preparations, more specifically calcium-based preparations – French trade mark No 1 226 303)
Decision of the Opposition Division:	Opposition upheld
Decision of the Board of Appeal:	Annulment of the decision of the Opposition Division
Pleas in law relied on:	Misinterpretation of Article 43(2) of Council Regulation No 40/94 given that all the products claimed had not been taken into account and there was no overall comparison of the two trade marks. The goods covered by the two marks in conflict are similar.

19.3.2005

Official Journal of the European Union

C 69/22

Action brought on 4 January 2005 by ReckittBenckiser N.V. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-2/05)

(2005/C 69/40)

Language of the case: English

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 January 2005 by ReckittBenckiser N.V., established in Hoofddorp (The Netherlands) represented by G.S.P. Vos, lawyer.

The applicant claims that the Court should:

—	annul the contested decision of the Board of Appeal of the OHIM;

—	allow the registration of the Community trade mark application No 1 155 712;

—	order the OHIM to pay the costs in accordance with Article 87(2) of the Rules of Procedure of the Court of First Instance.

Pleas in law and main arguments

Community trade mark concerned:	The three dimensional mark of a white and blue rectangular tablet with an oval white centre for goods in classes 1 and 3 (Chemical products for industrial purposes; bleaching preparations and other substances for laundry use,...) - application No 1 155 712
Decision of the examiner:	Rejection of the application
Decision of the Board of Appeal:	Dismissal of the appeal
Pleas in law:	Violation of Article 7(1)(b) of Council Regulation No 40/94

19.3.2005

Official Journal of the European Union

C 69/22

Action brought on 4 January 2005 by ReckittBenckiser N.V. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-3/05)

(2005/C 69/41)

Language of the case: English

The applicant claims that the Court should:

—	annul the contested decision of the Board of Appeal of the OHIM;

—	allow the registration of the Community trade mark application No 1 155 712;

—	order the OHIM to pay the costs in accordance with Article 87(2) of the Rules of Procedure of the Court of First Instance.

Pleas in law and main arguments

Community trade mark concerned:	The three dimensional mark of a white and blue rectangular tablet with an oval red centre for goods in classes 1 and 3 (Chemical products for industrial purposes; bleaching preparations and other substances for laundry use and dishwashing,...) - application No 1 156 595
Decision of the examiner:	Rejection of the application
Decision of the Board of Appeal:	Dismissal of the appeal
Pleas in law:	Violation of Article 7(1)(b) of Council Regulation No 40/94

19.3.2005

Official Journal of the European Union

C 69/23

Action brought on 7 January 2005 by TV Danmark A/S and Kanal 5 Denmark Ltd., against the Commission of the European Communities

(Case T-12/05)

(2005/C 69/42)

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 January 2005 by TV Danmark A/S, Skovlunde, (Denmark) and Kanal 5 Denmark Ltd., Hounslow (United Kingdom) represented by D. Vandermeersch, T. Müller-Ibold, K. Nordlander and H. Peytz, lawyers with an address for service in Luxembourg.

The applicant claims that the Court should:

—	annul the Decision of the European Commission of 6 October 2004 in the State aid matter N 313/2004 - Denmark Recapitalisation of TV2/Danmark A/S;

—	order the Commission to pay the applicants' legal fees, costs and other expenses incurred in connection with this application.

Pleas in law and main arguments

The contested decision relates to an injection of capital and a conversion of a State loan into equity by the Danish Government for the benefit of TV2/Danmark A/S, which it considered necessary to avoid the bankruptcy of TV2 resulting from the repayment of amounts of illegal State aid ordered by the Commission in a decision of 19 May 2004 (1) establishing the Government's overcompensation of TV2's public service cost. In the contested decision, the Commission held that State aid might be involved in the Government's recapitalisation of TV2, but that if so it would be compatible with the common market under Article 86(2) EC.

The applicants submit that in adopting the decision, the Commission infringed Articles 86(2), 87(1), 88(2) and 253 EC, the Protocol annexed to the EC Treaty on the system of public broadcasting in the Member States, Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (2), and the Communication from the Commission on the application of the State aid rules to public service broadcasting (3).

In support of their application, the applicants submit that the Commission infringed Articles 87(1), 88(3) and 86(2) EC, when, after having found that the private investor principle, as applied to long-term investment, could not be invoked given the uncertainty surrounding the planned privatisation of TV2, it failed to establish and to quantify the State aid.

Secondly, the applicants submit that the Commission infringed Article 86(2) EC, the Protocol, and the Broadcasting Communication when it based itself on a definition of a service of a general economic interest which is too broad, too imprecisely worded and creates a distortion of competition and an effect on trade contrary to Article 86(2) EC. The applicants also claim that the Commission failed to establish that compliance with the Recovery Decision without the subsequent recapitalisation would obstruct TV2 in the performance of its public service tasks.

According to the applicants, the Commission furthermore failed to establish that the development of trade would not be affected by the recapitalisation to such an extent as is contrary to the interest of the Community.

Thirdly, the applicants submit that the Commission infringed Article 86(2) EC, the Protocol, and the Broadcasting Communication when it failed to establish TV2's net public service costs which could be funded by the State and committed manifest errors of assessment when applying the proportionality test.

Fourthly, the applicants submit that the contested decision infringes Articles 87 and 88 EC and the right to equal treatment as it perpetuates, contrary to the Commission's State aid recovery policy, the unlawful advantage of the illegal aid and the resulting distortion of competition.

Fifthly, the applicants submit that the Commission infringed Article 88(2) EC and Article 4(4) of the Procedural Regulation when it decided not to open the formal investigation procedure giving interested third parties the opportunity to be heard.

Finally, the applicants claim that the Commission infringed Article 253 EC when it failed to properly state its reasons for adopting the contested decision.

(1) Commission Decision of 19 May 2004 in case C 2/2003 - State funding of TV2/Denmark

(2) OJ L 83, p. 1

(3) OJ 2001 C 320, p. 5

19.3.2005

Official Journal of the European Union

C 69/24

Action brought on 7 January 2004 by Castell del Remei S.L against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-13/05)

(2005/C 69/43)

Language of the case: Spanish

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 7 January 2004 by Castell del Remei S.L, represented by Jorge Grau Mora and Alejandro Angulo, of the Barcelona Bar; Maria Baylos Morales and Antonio Velazquez Ibanez, of the Madrid Bar; Fernand de Visscher, Emmanuel Cornu, Eric de Gryse and Donatienne Moreau, of the Brussels Bar, lawyer.

The applicant claims that the Court should:

1.	set aside the decision of the First Board of Appeal, of 27 October 2004, delivered in Case R 0691/2003-1; and

2.	order OHIM to pay the costs.

Pleas in law and main arguments:

Applicant for Community trade mark:	The applicant
Community trade mark sought:	Word mark ‘ODA’ — Application No 1.655.786, for goods in Class 33 (alcoholic beverages, except beers)
Proprietor of mark or sign cited in the opposition proceedings:	Bodegas Roda S.A.
Mark or sign cited in opposition:	International word mark ‘RODA’ (No 703.486), Spanish word mark ‘BODEGAS RODA’ (No 1.757.553), ‘RODA II’ (No 2.006.615), ‘RODA I’ (No 2.006.616), and Greek national mark ‘RODA’ (No 137.050) for wines and spirits in Class 33 and the trade name ‘BODEGAS RIOJA’ for the ‘business dedicated to the creation and production of wines’.
Decision of the Opposition Division:	Opposition upheld and application refused.
Decision of the Board of Appeal:	Appeal dismissed.
Pleas in law:	Incorrect application of Article 8(1)(b) of Regulation (EC) No 40/94

19.3.2005

Official Journal of the European Union

C 69/25

Action brought on 12 January 2005 by the Italian Republic against the Commission of the European Communities

(Case T-14/05)

(2005/C 69/44)

Language of the case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 12 January 2005 by the Italian Republic, represented by Danilo Del Gaizo, Avvocato dello Stato.

The applicant claims that the Court should:

—	declare that Commission Regulation (EC) No 1809/2004 is void ab initio;

—	order the Commission to pay the costs.

Pleas in law and main arguments

This action is brought against Commission Regulation (EC) No 1809/2004 of 18 October 2004 amending Regulation (EC) No 2848/98 laying down detailed rules for the application of the quota buy-back programme in the raw tobacco sector (OJ L 318 of 19.10.2004) (‘the contested regulation’). The contested regulation adds to Article 36(1) of Regulation No 2848/98 a subparagraph which provides for a buy-back price for tobacco quotas relating to the 2004 harvest fixed at an amount equal to 40 % of the premium and states that that amount is to be paid before 31 May 2005.

The Italian Government takes the view that the contested regulation infringes Council Regulation (EEC) No 2075/92 (1) (and in particular Article 14a thereof) and that there is infringement of an essential procedural requirement and misuse of powers.

In particular, the setting of a quota buy-back price for quotas bought back in respect of the 2004 harvest, which is, moreover, particularly high, identical and undifferentiated for all producers and for all qualities of tobacco varieties, payable almost immediately in a single payment, is, in the Italian Government's view, contrary to Article 14a of Council Regulation No 2075/92, as amended, inter alia, by Regulation No 1636/98.

The Italian Government also considers that the setting of the contested level of the buy-back price cannot be regarded as being justified, and certainly cannot be justified by the reasons stated in the third recital in the preamble to the contested regulation, according to which: ‘For quotas under the 2004 harvest, the buy-back price should be fixed on the basis of the minimum level of aid which the farmer can receive under the direct payment scheme set up by Council Regulation (EC) No 1782/2003 of 29 September 2003 … Moreover, with a view to the implementation of the single payment scheme, the payment period for the buy-back price should be kept to a minimum.’ In that regard, it contends that the provisions of Regulation No 2075/92 were not repealed for the year under consideration (or for 2005) and that the Commission was not therefore authorised to use for the level of the buy-back price a legal basis completely different from the one which it should have adhered to in performing the operation or to pursue objectives completely different from and contrary to those which, on the basis of Council Regulation No 2075/92, should have justified its adoption.

The Italian Government further alleges a failure to give reasons for the contested measure, both in respect of the setting of a buy-back price which is the same for all producers and takes no account of the individual varieties of tobacco produced and in respect of the quantification of the price at an amount equal to 40 % of the premium, as well as a conflict between the provisions of Article 1 of the contested regulation, the statements contained in its third recital and the reasons clearly stated in its second recital.

(1) Council Regulation (EEC) No 2075/92 of 30 June 1992 on the common organization of the market in raw tobacco (OJ L 215 of 30.07.1992, p. 70).

19.3.2005

Official Journal of the European Union

C 69/25

Action brought on 19 January 2005 by IMI plc, IMI Kynoch Ltd. and Yorkshire Copper Tube against the Commission of the European Communities

(Case T-18/05)

(2005/C 69/45)

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 19 January 2005 by IMI plc, established in Birmingham (United Kingdom), IMI Kynoch Ltd., established in Birmingham (United Kingdom) and Yorkshire Copper Tube, established in Liverpool (United Kingdom), represented by M. Struys and D. Arts, lawyers.

The applicants claim that the Court should:

—	annul Article 1 insofar as it relates to the companies listed in Article 1 (h), (i) and (j) and annul Article 2 (f) of the Commission Decision dated 3 September 2004 and amended by written procedure on 20 October 2004 in case COMP/E-1/38.069-copper plumbing tubes;

—	alternatively, reduce the fines imposed on the applicants;

—	order the Commission to pay the costs.

Pleas in law and main arguments

In the contested decision, the Commission found an infringement of Article 81(1) EC and Article 53(1) EEA by several undertakings in the copper plumbing sector. The infringement comprised three separate manifestations: arrangements among the so-called SANCO producers, arrangements among the so called WICU and Cuprotherm producers and arrangements among the broader group of copper plumbing tube producers. According to the decision, the applicants were not aware or could not have reasonably foreseen the SANCO arrangements and the WICU and Cuprotherm arrangements.

In support of their application, the applicants submit a violation of the principle of non-discrimination. According to the applicants, the Commission favoured, because of the way it conducted its investigation, some of the undertakings. The applicants state that they were the last companies to receive a request for information and therefore were also the last to apply for leniency, resulting in only a 10 % reduction of the fine on that ground.

The applicants furthermore submit that the Commission erred in finding that the SANCO arrangements were not significantly tighter than the arrangements in the broader group. They also submit that the absence of differentiation at the level of the fines between the participants in the SANCO arrangements and participants in the broader group of producers, violates the principle of non-discrimination and the principle according to which responsibility for violating competition law is personal in nature.

The applicants also contest the conclusion to impose the same fine on the applicants and the producers that participated in the broader arrangement and the WICU and Cuprotherm arrangements. The applicants submit that this conclusion violates the principle of non-discrimination, the principle according to which responsibility for violating competition law is personal in nature and that the decision is not sufficiently reasoned on this point.

The applicants furthermore claim that the Commission violated the principle of non-discrimination and made a manifest error in finding that the applicants participated without interruption in the arrangements while no continuity could be established in respect of certain other undertakings. According to the applicants, their situation is identical to that of those other undertakings. The applicants also invoke in this respect a violation of their rights of defence in that the Commission relied in the decision on elements that had not been taken into consideration in the statement of objections.

Finally, the applicants submit a violation of the principle of proportionality in the determination of the fines.

19.3.2005

Official Journal of the European Union

C 69/26

Action brought on 18 January 2005 by the Italian Republic against the Commission of the European Communities

(Case T-26/05)

(2005/C 69/46)

Language of the case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 18 January 2005 by the Italian Republic, represented by Antonio Cingolo, avvocato dello Stato.

The applicant claims that the Court should:

annul:

—	the memorandum of 9 November 2004 SPD – Emilia-Romagna;

—	the memorandum of 10 November 2004 NOP Research;

—	the memorandum of 12 November 2004 SPD Piemonte, PEP Calabria, PEP Molise, SPD Toscana, PEP Sicilia, SPD Marche, SPD Friuli-Venezia Giulia, PEP Campania, SPD Liguria;

—	the memorandum of 16 November 2004 SPD Lombardia, SPD Veneto;

—	the memorandum of 17 November 2004 SPD Lazio;

—	the memorandum of 18 November 2004 NOP Local enterprise development;

—	the memorandum of 22 November 2004 PEP Sicilia;

—	the memorandum of 24 November 2004 PEP Puglia;

—	the memorandum of 29 November 2004 SPD IP Trento;

—	the memorandum of 16 December 2004 PEP Puglia;

—	the memorandum of 17 December 2004 PEP Campania;

—	the memorandum of 10 January 2005 NOP Local enterprise development.

2.	order the Commission to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those put forward in Case T-345/04 Italian Republic v Commission (1).

(1) OJ C 262 of 23.10.2004, p. 55.

19.3.2005

Official Journal of the European Union

C 69/28

(2005/C 69/48)

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

Past publications

These texts are available on:

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

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

		ISSN 1725-2423
Official Journal of the European Union		C 69

English edition	Information and Notices	Volume 48 19 March 2005

Notice No	Contents	page
	I Information
	Court of Justice
	COURT OF JUSTICE
2005/C 069/1	Judgment of the Court (First Chamber) of 13 January 2005 in Case C-181/03 P: Albert Nardone, v Commission of the European Communities (Appeal — Former official — Application for invalidity pension — Conditions for granting)	1

2005/C 069/2	Judgment of the Court (Fourth Chamber) of 13 January 2005 in Case C-126/04 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven): Heineken Brouwerijen BV v Hoofdproductschap Akkerbouw (Cereals — Import regime — Community tariff quota for barley for malting — Discrimination)	1

2005/C 069/3	Order of the Court (Sixth Chamber) of 25 November 2004 in Case C-18/03 P Vela Srl and Tecnagrind SL v Commission of the European Communities (Appeal — EAGGF — Financial participation in projects — Withdrawal of the Fund's financial aid)	2

2005/C 069/4	Order of the Court (Fifth Chamber) of 8 October 2004 in Case C-248/03 Commission of the European Communities v Transport Environment Development Systems (Trends) and Others (Arbitration clause — Decision 2004/407/EC, Euratom — Articles 2 and 3 — Reference to the Court of First Instance)	2

2005/C 069/5	Order of the Court (Fifth Chamber) of 8 October 2004 in Case C-249/03 Commission of the European Communities v Transport Environment Development Systems (Trends) and Others (Arbitration clause — Decision 2004/407/EC, Euratom — Articles 2 and 3 — Reference to the Court of First Instance)	2

2005/C 069/6	Order of the Court (Fourth Chamber) of 18 November 2004 in Joined Cases C-261/03 and C-262/03: Reference for a preliminary ruling from the Tribunale amministrativo regionale per l'Emiglia-Romagna in Allevamenti Associati Srl v Regione Emilia-Romagna and Latteria Sociale Moderna Soc. Coop. Arl v Azienda di Stato per gli interventi nel mercato agricolo (AIMA) and Others (Reference for a preliminary ruling — Article 104(3) of the Rules of Procedure — Milk and milk products — Additional levy scheme — Treatment and processing by a dairy under a work contract — Concepts of delivery and direct sale)	3

2005/C 069/7	Order of the Court (Fourth Chamber) of 19 October 2004 in Case C-425/03: Reference for a preliminary ruling from the Giudice di pace di Milazzo in Provvidenza Regio v AXA Assicurazioni SpA (Reference for a preliminary ruling — Inadmissibility)	3

2005/C 069/8	Order of the Court (Third Chamber) of 14 December 2004 in Case C-1/04 SA Tertir-Terminais de Portugal SA v Commission of the European Communities (Application for authorisation to serve a garnishee order on the Commission of the European Communities)	4

2005/C 069/9	Case C-517/04: Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven by order of that court of 15 December 2004 in Visserijbedrijf D.J. Koornstra Zn. V.o.f. v Productschap Vis	4

2005/C 069/0	Case C-525/04 P: Appeal brought on 27 December 2004 by the Kingdom of Spain against the judgment delivered on 21 October 2004 by the Court of First Instance (Fifth Chamber, Extended Composition) in Case T-36/99 between Lenzing AG and the Commission of the European Communities, supported by the Kingdom of Spain	4

2005/C 069/1	Case C-526/04: Reference for a preliminary ruling by the Court of Cassation, Commercial, Financial and Economic Division, France by order of that court of 14 December 2004 in the case of Laboratoires Boiron S.A. against Agence centrale des organismes de sécurité sociale (Central Agency for Social Security Bodies)	5

2005/C 069/2	Case C-3/05: Reference for a preliminary ruling by the Corte d'Appello di Cagliari by order of that court of 12 November 2004 in the case of Gaetano Verdoliva against J.M. Van Der Hoeven B.N.	6

2005/C 069/3	Case C-5/05: Reference for a preliminary ruling by the Hoge Raad der Nederlanden of 7 January 2005 in the case of Staatssecretaris van Financiën v B.F. Joustra	6

2005/C 069/4	Case C-6/05: Reference for a preliminary ruling from the Simvoulio tis Epikratias by decision of that court of 17 November 2004 in Medipac — Th. Kazantzidis A.E. v Venizelio-Pananio (PE.S.I. Kritis)	7

2005/C 069/5	Case C-10/05: Reference for a preliminary ruling from the Cour Administrative (Grand Duchy of Luxembourg) by judgment of that court of 11 January 2005 in Cynthia Mattern and Hajrudin Cikotic v Ministre du travail et de l'emploi	7

2005/C 069/6	Case C-13/05: Reference for a preliminary ruling from Juzgado de lo Social No 33 by order of that court of 7 January 2005 in the case of Sonia Chacón Navas against Eurest Colectividades SA	8

2005/C 069/7	Case C-16/05: Reference for a preliminary ruling by the House of Lords, by order of that court dated 2 December 2004, in the case of The Queen on the application of 1) Veli Tum and 2) Mehmet Dari against Secretary of State for the Home Department	8

2005/C 069/8	Case C-17/05: Reference for a preliminary ruling by the Court of Appeal (England & Wales) (Civil Division), by order of that court dated 11 January 2005, in the case of B.F. Cadman against Health & Safety Executive, Intervener: Equal Opportunities Commission	8

2005/C 069/9	Case C-21/05: Action brought on 25 January 2005 by the Commission of the European Communities against the Italian Republic	9

2005/C 069/0	Case C-24/05 P: Appeal brought on 26 January 2005 (fax: 24 January 2005) by August Storck KG against the judgment delivered on 10 November 2004 by the Court of First Instance of the European Communities (Fourth Chamber) in Case T-396/02 August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)	9

2005/C 069/1	Case C-25/05 P: Appeal brought on 26 January 2005 (fax: 24 January 2005) by August Storck KG against the judgment delivered on 10 November 2004 by the Court of First Instance of the European Communities (Fourth Chamber) in Case T-402/02 August Storck KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)	10

2005/C 069/2	Case C-36/05: Action brought on 31 January 2005 by the Commission of the European Communities against the Kingdom of Spain	12

2005/C 069/3	Removal from the register of Opinion C-1/04	12

	COURT OF FIRST INSTANCE
2005/C 069/4	Judgment of the Court of First Instance of 18 January 2005 in Case T-141/01 Entorn, Societat Limitada Enginyeria i Serveis v Commission of the European Communities (EAGGF — Financial participation in a demonstration project concerning the introduction of new cultivation techniques in sumac production — Cancellation of financial assistance from the fund)	13

2005/C 069/5	Judgment of the Court of First Instance of 18 January 2005 in Case T-93/02: Confédération nationale du Crédit Mutuel v Commission of the European Communities (State aid — Measures taken by the French Republic for Crédit Mutuel — Livret bleu — Decision 2003/216/EC — Duty to state reasons — Action for annulment)	13

2005/C 069/6	Judgment of the Court of First Instance of 12 January 2005 in Joined Cases T-367/02 to T-369/02: Wieland-Werke AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Word marks SnTEM, SnPUR and SnMIX — Absolute grounds for refusal — Descriptive nature — Article 7(1)(c) of Regulation (EC) No 40/94)	14

2005/C 069/7	Judgment of the Court of First Instance of 12 January 2005 in Case T-334/03: Deutsche Post EURO EXPRESS GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — EUROPREMIUM — Absolute ground for refusal — Descriptive nature — Article 7(1)(c) of Regulation (EC) No 40/94)	14

2005/C 069/8	Judgment of the Court of First Instance of 19 January 2005 in Case T-387/03: Proteome Inc. v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Word mark BIOKNOWLEDGE — Absolute grounds for refusal — Article 7(1)(c) of Regulation (EC) No 40/94 — Descriptive sign)	14

2005/C 069/9	Order of the Court of First Instance of 10 December 2004 in Case T-196/03: European Federation for Cosmetic Ingredients (EFfCI) v European Parliament and Council of the European Union (Manifest inadmissibility — Concept of measure of individual concern to an applicant — European Economic Interest Group — Contracts being performed — Intellectual property rights)	15

2005/C 069/0	Order of the Court of First Instance of 10 December 2004 in Case T-261/03 Euro Style 94 Srl v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition procedure — Application for figurative Community trade mark including the verbal element GLOVE — National and international figurative and verbal marks GLOBE — Relative ground for refusal — Article 8(1)(b) of Regulation No 40/94 — Action clearly devoid of legal foundation)	15

2005/C 069/1	Order of the President of the Court of First Instance of 22 December 2004 in Case T-201/04 R Microsoft Corporation v Commission of the European Communities (Proceedings for interim relief — Article 82 EC)	16

2005/C 069/2	Order of the Court of First Instance of 13 December 2004 in Case T-269/04 IDOM SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Withdrawal of application for registration — No need to adjudicate)	16

2005/C 069/3	Order of the President of the Court of First Instance of 10 November 2004 in Case T-303/04 R, European Dynamics SA v Commission of the European Communities (Public service contracts — Community tender procedure — Interim measures — Application for suspension of operation — Urgency — None)	17

2005/C 069/4	Case T-462/04: Action brought on 30 November 2004 by HEG Limited and Graphite India Limited against the Council of the European Union	17

2005/C 069/5	Case T-466/04: Action brought on 19 November 2004 by Elisabetta Dami against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)	18

2005/C 069/6	Case T-467/04: Action brought on 19 November 2004 by Elisabetta Dami against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)	19

2005/C 069/7	Case T-475/04: Action brought on 24 November 2004 by Bouygues SA and Bouygues Télécom against the Commission of the European Communities	20

2005/C 069/8	Case T-477/04: Action brought on 14 December 2004 by Aktieselskabet af 21. November 2001 against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)	21

2005/C 069/9	Case T-483/04: Action brought on 8 December 2004 by Armour Pharmaceutical Company against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)	21

2005/C 069/0	Case T-2/05: Action brought on 4 January 2005 by ReckittBenckiser N.V. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)	22

2005/C 069/1	Case T-3/05: Action brought on 4 January 2005 by ReckittBenckiser N.V. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)	22

2005/C 069/2	Case T-12/05: Action brought on 7 January 2005 by TV Danmark A/S and Kanal 5 Denmark Ltd., against the Commission of the European Communities	23

2005/C 069/3	Case T-13/05: Action brought on 7 January 2004 by Castell del Remei S.L against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)	24

2005/C 069/4	Case T-14/05: Action brought on 12 January 2005 by the Italian Republic against the Commission of the European Communities	25

2005/C 069/5	Case T-18/05: Action brought on 19 January 2005 by IMI plc, IMI Kynoch Ltd. and Yorkshire Copper Tube against the Commission of the European Communities	25

2005/C 069/6	Case T-26/05: Action brought on 18 January 2005 by the Italian Republic against the Commission of the European Communities	26

2005/C 069/7	Removal from the Register of Case T-189/04	27

	III Notices
2005/C 069/8	Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 57, 5.3.2005	28