16.4.2005

Official Journal of the European Union

C 93/1

JUDGMENT OF THE COURT

(Grand Chamber)

of 22 February 2005

in Case C-141/02 P: Commission of the European Communities v T-Mobile Austria GmbH (1)

(Appeal - Article 90(3) of the EC Treaty (now Article 86(3) EC) - Amount of the fees imposed by the Republic of Austria on operators of GSM networks - Partial rejection of the complaint - Admissibility)

(2005/C 93/01)

Language of the case: German

In Case C-141/02 P, appeal under Article 49 of the EC Statute of the Court of Justice, brought on 15 April 2002, Commission of the European Communities (Agents: W. Mölls and K. Wiedner) supported by: French Republic, (Agents: G. de Bergues and F. Million) the other parties to the proceedings being: T-Mobile Austria GmbH, formerly max-mobil Telekommunikation Service GmbH, established in Vienna (Austria) (avocats: A. Reidlinger, M. Esser-Wellié and T. Lübbig), Kingdom of the Netherlands (H.G. Sevenster) – the Court (Grand Chamber), composed of V. Skouris, President of the Chamber, P. Jann, C.W.A. Timmermans, A. Rosas and A. Borg Barthet, Presidents of Chambers, J.-P. Puissochet (Rapporteur), R. Schintgen, N. Colneric, S. von Bahr, M. Ilešič, J. Malenovský, J. Klučka and U. Lõhmus, Judges; M. Poiares Maduro, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, gave a judgment on 22 February 2005, in which it:

1.	Sets aside the judgment of 30 January 2002 of the Court of First Instance of the European Communities in Case T-54/99 max.mobil v Commission;

2.	Dismisses the action brought by max.mobil Telekommunikation Service GmbH before the Court of First Instance of the European Communities;

3.	Orders T-Mobile Austria GmbH to pay the costs.

(1) OJ C 169 of 13.07.2002.

16.4.2005

Official Journal of the European Union

C 93/1

JUDGMENT OF THE COURT

(Second Chamber)

of 17 February 2005

in Joined Cases C-453/02 and C-462/02: (references for a preliminary ruling from the Bundesfinanzhof) Finanzamt Gladbeck v Edith Linneweber and Finanzamt Herne-West v Savvas Akritidis (1)

(Sixth VAT Directive - Exemption for games of chance - Determination of the conditions and limitations to which the exemption is subject - Liability of games organised outside public casinos - Respect for the principle of fiscal neutrality - Article 13B( f) - Direct effect)

(2005/C 93/02)

Language of the case: German

In Joined Cases C-453/02 and C-462/02: references for a preliminary ruling under Article 234 EC from the Bundesfinanzhof (Germany), made by decisions of 6 November 2002, received at the Court on 13 and 23 December 2002, in the proceedings Finanzamt Gladbeck v Edith Linneweber (C-453/02 and Finanzamt Herne-West v Savvas Akritidis (C-462/02) – the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, C. Gulmann and R. Schintgen (Rapporteur) Judges; C. Stix-Hackl, Advocate General; M.F. Contet, Administrator, for the Registrar, gave a judgment on 17 February 2005, the operative part of which is as follows:

Article 13B(f) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment precludes national legislation which provides that the operation of all games of chance and gaming machines is exempt from VAT where it is carried out in licensed public casinos, while the operation of the same activity by traders other than those running casinos does not enjoy that exemption.

2.	Article 13B(f) of the Sixth Directive has direct effect in the sense that it can be relied on by an operator of games of chance or gaming machines before national courts to prevent the application of rules of national law which are inconsistent with that provision.

(1) OJ C 70 of 22.03.2003.

16.4.2005

Official Journal of the European Union

C 93/2

JUDGMENT OF THE COURT

(Third Chamber)

of 17 February 2005

in Case C-134/03: (reference for a preliminary ruling from the Giudice di pace di Genova-Voltri) Viacom Outdoor Srl v Giotto Immobilier SARL (1)

(Freedom to provide services - Competition - Bill-posting services - Domestic legislation imposing a municipal tax on advertising - Supply by municipalities of a public bill-posting service - Power of the municipalities to regulate the supply of bill-posting services - Internal taxation not discriminatory)

(2005/C 93/03)

Language of the case: Italian

In Case C-134/03: reference for a preliminary ruling under Article 234 EC from the Giudice di pace di Genova-Voltri (Italy), by decision of 10 March 2003, received at the Court on 25 March 2003, in the proceedings between Viacom Outdoor Srl v Giotto Immobilier SARL – the Court (Third Chamber), composed of A. Rosas (Rapporteur), President of the Chamber, A. Borg Barthet, J.-P. Puissochet, J. Malenovský and U. Lõhmus, Judges; J. Kokott, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, has given a judgment on 17 February 2005, in which it rules that:

1.	The questions concerning the interpretation of Articles 82 EC, 86 EC, 87 EC and 88 EC are inadmissible;

Article 49 EC does not preclude the levying of a tax such as the municipal tax on advertising imposed by the Decreto legislativo No 507 – Revisione ed armonizzazione dell'imposta comunale sulla pubblicità e del diritto sulle pubbliche affissioni (Legislative Decree No 507 revising and harmonising municipal advertising tax and bill-posting duty) of 15 November 1993.

(1) OJ C 146 of 21.06.2003.

16.4.2005

Official Journal of the European Union

C 93/2

JUDGMENT OF THE COURT

(Fifth Chamber)

of 24 February 2005

in Case C-320/04 Commission of the European Communities v Grand Duchy of Luxembourg (1)

(Failure of a Member State to fulfil obligations - Directive 2000/43/EC - Failure to transpose within the prescribed period)

(2005/C 93/04)

Language of the case: French

In Case C-320/04 Commission of the European Communities (Agent: D. Martin) v Grand Duchy of Luxembourg (Agent: S. Schreiner) – action for failure to fulfil obligations under Article 226 EC, brought on 27 July 2004 – the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, J. Makarczyk and J. Klučka (Rapporteur), Judges; P. Léger, Advocate General; R. Grass, Registrar, gave a judgment on 24 February 2005, in which it:

Declares that by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

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

(1) OJ C 228 of 11. 9. 2004.

16.4.2005

Official Journal of the European Union

C 93/3

JUDGMENT OF THE COURT

(Fifth Chamber)

of 24 February 2005

in Case C-327/04: Commission of the European Communities v Republic of Finland (1)

(Failure of a Member State to fulfil obligations - Directive 2000/43/EC - Failure to transpose within the prescribed period)

(2005/C 93/05)

Language of the case: Finnish

In Case C-327/04, action for a declaration under Article 226 EC, brought on 27 July 2004, Commission of the European Communities (Agents: D. Martin and M. Huttunen) v Republic of Finland (Agent: T. Pynnä) – the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, J. Makarczyk and J. Klučka (Rapporteur), Judges; P. Leger, Advocate General; R. Grass, Registrar, gave a judgment on 24 February 2005, in which it:

Declares that, by failing to adopt, as regards the province of Åland, the laws, regulations and administrative provisions necessary to comply with Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, the Republic of Finland has failed to fulfil its obligations under that directive;

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

(1) OJ C 239 of 25.09.2004.

16.4.2005

Official Journal of the European Union

C 93/3

ORDER OF THE COURT

(Second Chamber)

of 1 December 2004

in Case C-498/01 P: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) v Zapf Creation AG (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Absolute grounds for refusal of registration - Article 7(1)(b) and (c) - ‘New Born Baby’ - No need to give judgment)

(2005/C 93/06)

Language of the case: German

In Case C-498/01 P: appeal under Article 49 of the EC Statute of the Court of Justice, brought on 20 December 2001, Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: A. von Mühlendahl, M. Schennen and C. Røhl Søberg), supported by United Kingdom of Great Britain and Northern Ireland (Agent: K. Manji, assisted by M. Tappin), the other party to the proceedings being: Zapf Creation AG, established in Rödental (Germany) (Lawyers: A. Kockläuner and S. Zech) – the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, J.-P. Puissochet (Rapporteur) and R. Schintgen, Judges; F.G. Jacobs, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, made an order on 1 December 2004, the operative part of which is as follows

1.	It is unnecessary to give judgment on the appeal brought by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).

2.	Zapf Creation AG shall pay the costs of the present proceedings.

3.	The United Kingdom of Great Britain and Northern Ireland shall bear its own costs.

(1) OJ C 56 of 02.03.2002.

16.4.2005

Official Journal of the European Union

C 93/4

ORDER OF THE COURT

(Fifth Chamber)

of 16 December 2004

in Case C-222/03 P Associazione Produttori Olivicoli Laziali (APOL) Associazione Italiana Produttori Olivicoli (AIPO) v Commission of the European Communities (1)

(Appeal - EAGGF - Improvement of the conditions under which agricultural products are processed and marketed - Plan to build a centre for the storage, packaging and marketing of olive oil - Principle of proportionality - Force majeure - Rights of the defence)

(2005/C 93/07)

Language of the case: Italian

In Case C-222/03 P: appeal under Article 56 of the Statute of the Court of Justice, brought on 21 May 2003, Associazione Produttori Olivicoli Laziali (APOL), Associazione Italiana Produttori Olivicoli (AIPO), (lawyers: E. Cappelli, P. De Caterini and A. Bandini), the other party to the proceedings being: Commission of the European Communities (Agents: L. Visaggio and C. Cattabriga, assisted by M. Moretto, lawyer) – the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, C. Gulmann and J. Klučka (Rapporteur), Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, made an order on 16 December 2004, the operative part of which is as follows

1.	The appeal is dismissed.

2.	Associazione Produttori Olivicoli Laziali and Associazione Italiana Produttori Olivicoli shall pay the costs of this appeal.

(1) OJ C 171 of 19.07.2003

16.4.2005

Official Journal of the European Union

C 93/4

Appeal brought on 18 January 2005 by H. Meister against the judgment delivered on 28 October 2004 by the Court of First Instance of the European Communities (Third Chamber) in Case T-76/03 between H. Meister and Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case C-12/05 P)

(2005/C 93/08)

Language of the case: French

An appeal against the judgment delivered on 28 October 2004 by the Court of First Instance of the European Communities (Third Chamber) in Case T-76/03 between H. Meister and Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of Justice of the European Communities on 18 January 2005 by H. Meister, represented by P. Goergen, avocat.

The appellant claims that the Court should:

1.	declare the appeal admissible and well founded;

accordingly, set aside the judgment of the Court of First Instance (Third Chamber) of 28 October 2004 (Case T-76/03), with the exception of paragraphs 202 to 208 of the contested judgment, namely the provisions stating that the President of OHIM committed a breach of his administrative duty such as to give rise to a right to reparation;

3.	give final judgment on the dispute, if it does not remit the case to the Court of First Instance, and grant the forms of order sought at first instance;

4.	order OHIM to pay all the costs of the proceedings before both courts.

Pleas on appeal and main arguments:

The Court of First Instance, first, gave its reasoning in an erroneous, inadequate and contradictory manner and, second, made errors in law.

First of all, the defects in the Court's reasoning amount to a clear distortion of the facts. The Court's selection of the matters of fact was arbitrary and its assessment of them inaccurate. Secondly, those defects are the result of an incorrect legal qualification of the contested decision, in particular the refusal to classify it as a disciplinary measure. The Court made a further error in its reasoning in finding that the administration had a broad discretion when evaluating the interest of the service, which renders ineffective the duty to have regard to the welfare of officials, and in stating that judicial review concerning observance of the condition relating to the interest of the service is limited to the question as to whether or not the appointing authority used its discretionary powers in a clearly erroneous manner. The Court also carried out an inaccurate assessment of the interest of the service and failed to take the welfare of officials into account. The Court also misapplied the principle of proportionality in deciding that the contested decision complied with the principle, although the decision was neither an appropriate measure, nor the least restrictive one. The Court made a further error in assessing the equivalence or comparability of the new position with the former post. In fact, if the Court's reasoning were accepted, every transfer related to the current grade would comply with the principle of assignment to an equivalent post. Finally, the Court failed to indicate which elements it took into account when it assessed the non-material damage suffered by the appellant.

The Court also made a number of errors in law. First of all, it exempted the transfer decision from the duty to state reasons in considering it a mere measure of internal organisation, even though that duty has been held to constitute a general principle of law. Secondly, the Court made an error of law in finding there to be no infringement of the right to a fair hearing to the detriment of the appellant. The Court also made an error of law in failing to make a clear statement on the scope of the right to freedom of expression, on which the appellant should have been able to rely in this instance. Finally, the Court made an error of law concerning the application of the rights of defence, in particular the right to be heard before the transfer decision was made.

16.4.2005

Official Journal of the European Union

C 93/5

Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Napoli by order of that court of 15 July 2004 in Salus S.p.A v Agenzia Entrate Ufficio Napoli 4

(Case C-18/05)

(2005/C 93/09)

Language of the case: Italian

Reference has been made to the Court of Justice of the European Communities by order of the Commissione Tributaria Provinciale di Napoli (Italy) of 15 July 2004, received at the Court Registry on 20 January 2005, for a preliminary ruling in the proceedings between Salus S.p.A and Agenzia Entrate Ufficio Napoli 4 on the following questions:

Does the exemption under Article 13B(c) of Sixth Council Directive 77/388/EEC (1) of 17 May 1977 refer to input VAT paid on the acquisition of goods or services used for exempted activities or rather to cases in which a taxable person who has acquired goods intended for such activities subsequently sells those goods to other taxable persons?

2.	Is that provision sufficiently precise and unconditional to be directly effective in the national legal system?

3.	For the purposes of the direct applicability of the directive, what is the effect of the requirement in the first paragraph of Article 13B whereby, in implementing Article 13B(c), Member States are to lay down conditions for 'preventing any possible evasion, avoidance or abuse?

(1) OJ 1977 L 145 of 13.06.1977, p. 1.

16.4.2005

Official Journal of the European Union

C 93/5

Action brought on 20 January 2005 by the Commission of the European Communities against the Kingdom of Denmark

(Case C-19/05)

(2005/C 93/10)

Language of the case: Danish

An action against the Kingdom of Denmark was brought before the Court of Justice of the European Communities on 20 January 2005 (fax 14.01.) by the Commission of the European Communities, represented by N. B. Rasmussen and G. Wilms, with an address for service in Luxembourg.

The Commission of the European Communities claims that the Court should:

—

declare that, by failing to pay the Commission the sum of DKK 18 687 475 as own resources, together with default interest from 27 July 2000, the Kingdom of Denmark has failed to fulfil its obligations under Community law, in particular Article 10 EC and Articles 2 and 8 of Council Decision 94/728/EC, Euratom (1) of 31 October 1994 on the system of the European Communities' own resources;

—	order the Kingdom of Denmark to pay the costs.

Pleas in law and main arguments

The amount referred to in the application represents the duty that the Danish customs authorities omitted to collect in the period 1994-1997 from an undertaking wrongly permitted by the said authorities to import certain goods at zero rate. That permission was given as concerning goods intended for incorporation in or for fitting to or equipping ships, boats or other vessels in accordance with Council Regulation (EEC) No 2658/87 (2) of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, Annex 1, Section II. The goods were, however, intended for the manufacture of containers and could not, as was later acknowledged by the Danish authorities, be covered by the said provision.

The Danish authorities have unlawfully failed to make the said amount available to the Commission as own resources. The claims made in this connection correspond to those made by the Commission in its application against Denmark in Case C-392/02 (3).

(1) OJ L 293 of 12.11.1994, p. 9.

(2) OJ L 256 of 7.09.1987, p.1.

(3) OJ C 31 of 8.02.2003, p. 4.

16.4.2005

Official Journal of the European Union

C 93/6

Reference for a preliminary ruling from the Tribunale Civile e Penale di Forlì by order of that court of 14 December 2004 in the criminal proceedings against K.J.W. Schwibbert

(Case C-20/05)

(2005/C 93/11)

Language of the case: Italian

Reference has been made to the Court of Justice of the European Communities by order of the Tribunale Civile e Penale di Forlì (Italy) of 14 December 2004, received at the Court Registry on 21 January 2005, for a preliminary ruling in the criminal proceedings pending against K.J.W. Schwibbert on the following questions:

—	whether the affixing of the distinctive sign SIAE [società italiana degli autori ed editori] is compatible with Council Directive 92/100/EEC (1) on rental right and lending right and on certain rights related to copyright in the field of intellectual property, and Articles 3 EC and 23 EC to 27 EC;

—	whether it is further compatible with Council Directive 83/189/EEC (2) and Council Directive 88/182/EEC (3).

(1) OJ 1992 L 346 of 27.11.1992, p. 61.

(2) OJ 1983 L 109 of 26.04.1983, p. 8.

(3) OJ 1988 L 81 of 26.03.1988, p. 75.

16.4.2005

Official Journal of the European Union

C 93/6

Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Administrative Court for Trade and Industry) by order of that court of 18 January 2005 in G.J. Dokter, Maatschap Van den Top and W. Boekhout v Minister van Landbouw, Natuur en Voedselkwaliteit

(Case C-28/05)

(2005/C 93/12)

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) (the Netherlands) of 18 January 2005, received at the Court Registry on 28 January 2005, for a preliminary ruling in the proceedings between G.J. Dokter, Maatschap Van den Top and W. Boekhout and Minister van Landbouw, Natuur en Voedselkwaliteit (Minister for Agriculture, Nature and Food Quality) on the following questions:

Does the obligation on Member States under the first indent of Article 11(1) of Directive 85/511/EEC, (1) read in conjunction with the second indent of Article 13(1) thereof, to ensure that laboratory testing to detect the presence of FMD is carried out by a laboratory listed in Annex B to Directive 85/511/EEC have direct effect?

(a)	Must Article 11(1) of Directive 85/511/EEC be interpreted as meaning that legal consequences must be attached to the fact that the presence of FMD is found by a laboratory which is not listed in Annex B to Directive 85/511/EEC?

(b)

If the answer to Question 2a is in the affirmative:

Is the purpose of Article 11(1) of Directive 85/511/EEC to protect the interests of individuals, such as the appellants in the main proceedings? If not, can individuals, such as the appellants in the main proceedings, plead possible failure to fulfil the obligations which this provision places on the authorities of the Member States?

(c)	If the answer to Question 2b means that individuals can rely on Article 11(1) of Directive 85/511/EEC: What legal consequences must be attached to a finding of the presence of FMD by a laboratory which is not listed in Annex B to Directive 85/511/EEC?

3.	Must Annex B to Directive 85/511/EEC be interpreted, having regard to Articles 11 and 13 thereof, as meaning that the mention in Annex B to Directive 85/511/EEC of ‘Centraal Diergeneeskundig Instituut, Lelystad’ can or must refer also to ID-Lelystad B.V.?

If it follows from the above answers that the presence of FMD can be found by a laboratory which is not listed in Annex B to Directive 85/511/EEC or that Annex B to Directive 85/511/EEC must be interpreted as meaning that the mention of the ‘Centraal Diergeneeskundig Instituut, Lelystad’ can or must refer also to ID-Lelystad B.V.:

Must Directive 85/511/EEC be interpreted as providing that the national administrative authority authorised to adopt decisions is bound by the outcome of an examination by a laboratory which is listed in Annex B to Directive 85/551/EEC or – if the answer to Question 2a means that the administrative authority may base its FMD control measures also on results obtained by a laboratory which is not listed in Annex B to Directive 85/511/EEC – by the results of the latter laboratory, or does the determination of final authority in that regard fall within the procedural autonomy of the Member State and must the court before which the main proceedings are pending examine whether the rules in that respect apply irrespective of whether the laboratory examination is carried out by virtue of a Community or national legal obligation and of whether or not the application of the provisions of national procedural law renders the implementation of the Community rules extremely difficult or practically impossible?

If the answer to Question 4 means that the issue of whether national authorities are bound by the laboratory result is governed by Directive 85/511/EEC:

Are the national authorities bound unconditionally by the result of an FMD examination carried out by a laboratory? If not, what margin of discretion does Directive 85/511/EEC leave these national authorities?

(1) Council Directive 85/511/EEC of 18 November 1985 introducing Community measures for the control of foot-and-mouth disease (OJ 1985 L 315, p. 11).

16.4.2005

Official Journal of the European Union

C 93/7

Reference for a preliminary ruling from the College van Beroep voor het Bedrijfsleven by decision of that court of 26 January 2005 in the case of Maatschap J. and G.P. and A.C. Schouten v Minister van Landbouw, Natuur en Voedselkwaliteit

(Case C-34/05)

(2005/C 93/13)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by decision of the College van Beroep voor het Bedrijfsleven (Administrative Court for Trade and Industry) (Netherlands) of 26 January 2005, received at the Court Registry on 31 January 2005, for a preliminary ruling in the proceedings between Maatschap J. and G.P. and A.C. Schouten and Minister van Landbouw, Natuur en Voedselkwaliteit on the following questions:

Must Article 12(2)(b) of Regulation (EC) No 1254/1999 (1) and Article 2(1)(c) of Regulation (EEC) No 3887/92 (2) be interpreted as meaning that a parcel of land declared as a forage area may not be regarded as ‘available’ if at any time in the relevant period that parcel of land has been under water?

2.	If the answer to Question 1 is affirmative, are the provisions referred to above binding with specific regard to the consequences flowing from such reply?

If the answer to Question 1 is negative, what are the applicable criteria for determining whether a parcel of land declared as a forage area which was temporarily under water can be regarded as ‘available’ for the purposes of Article 12(2)(b) of Regulation (EC) No 1254/1999 and Article 2(1)(c) of Regulation (EEC) No 3887/92?

(1) Council Regulation (EC) No 1254/1999 of 17 May 1999 (OJ L 160, p. 21).

(2) Commission Regulation (EEC) No 3887/92 of 23 December 1992 (OJ L 391, p. 36).

16.4.2005

Official Journal of the European Union

C 93/8

Reference for a preliminary ruling from the Corte Suprema di Cassazione by order of that court of 23 June 2004 and 10 November 2004, received at the Court Registry on 31 January 2005, in the case of Reemtsma Cigarettenfabriken Gmbh against Ministero delle Finanze

(Case C-35/05)

(2005/C 93/14)

Language of the case: Italian

Reference has been made to the Court of Justice of the European Communities by order of the Corte Suprema di Cassazione (Supreme Court of Cassation, Italy) by order of 23 June 2004 and 10 November 2004, received at the Court Registry on 31 January 2005, for a preliminary ruling in the case of Reemtsma Cigarettenfabriken Gmbh against Ministero delle Finanze, on the following questions:

Must Articles 2 and 5 of the Eighth Council Directive 79/1072/EEC (1) of 6 December 1979, in so far as they make reimbursement to a non-resident recipient of goods or services conditional on use of the goods and services for the purposes of taxable transactions, be interpreted as meaning that even VAT that is not due, has been charged incorrectly as output tax and paid to the revenue authorities is refundable? If the answer is in the affirmative, is a national provision which precludes reimbursement to a non-resident recipient of goods or services on the ground that the tax charged and paid although not due is not deductible contrary to the abovementioned provisions?

In general, is it possible to infer from the uniform Community rules that the recipient of goods or services is the person liable for payment of tax to the revenue authorities? Is it compatible with those rules and in particular with the principles of neutrality of VAT, effectiveness and non-discrimination, not to grant under domestic law to a recipient of goods or services who is subject to VAT and who is treated under national law as being subject to the obligations of invoicing and payment of the tax, a right against the revenue authorities to claim reimbursement in cases where tax that is not due is charged and paid? Are national rules – as interpreted by the national courts – under which a recipient of goods or services may bring an action only against the transferor or provider of the service and not against the revenue authorities, despite the existence of a case of substitution of that kind under domestic law in relation to direct taxes where both parties (the withholding agent and the taxpayer) are entitled to apply to the revenue authorities for reimbursement, contrary to the principles of effectiveness and non-discrimination in the matter of reimbursement of VAT collected in breach of Community law?

(1) OJ L 331 of 27 December 1979, p. 11.

16.4.2005

Official Journal of the European Union

C 93/8

Reference for a preliminary ruling from the Överklagandenämnden för högskolan by decision of that court of 1 February 2005 in Kaj Lyyski v Umeå universitet

(Case C-40/05)

(2005/C 93/15)

Language of the case: Swedish

Reference has been made to the Court of Justice of the European Communities by decision of the Överklagandenämnden för högskolan (Sweden) of 1 February 2005, received at the Court Registry on 3 February 2005, for a preliminary ruling in the proceedings between Kaj Lyyski and Umeå universitet on the following question:

Does Community law, in particular Article 12 EC, prevent the imposition, on assessment of an applicant's eligibility for admission to teacher training intended in the short term to meet the need for qualified teachers in Sweden, of a requirement of employment in a Swedish school? Can such a requirement be considered justified and proportional?

2.	Does it make a difference to the answer to the first question if an applicant for the training course who is employed in a school in a Member State other than Sweden is a Swedish national or a national of another Member State?

3.	Does it make a difference to the answer to the first question if the teacher training is intended to be of limited duration or if the teacher involved is of a longer duration?

16.4.2005

Official Journal of the European Union

C 93/9

Reference for a preliminary ruling from the Tribunal de première instance de Liège (Belgium) by judgment of that court of 24 January 2005 in Air Liquide Industries Belgium SA v Province de Liège

(Case C-41/05)

(2005/C 93/16)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by judgment of the Tribunal de première instance de Liège (Belgium) of 24 January 2005, received at the Court Registry on 3 February 2005, for a preliminary ruling in the proceedings between Air Liquide Industries Belgium SA and Province de Liège on the following questions:

Must exemption from a provincial tax on motive force granted solely in respect of motors used in natural gas installations, to the exclusion of motors used for other industrial gases, be regarded as State aid within the meaning of Article 87 of the consolidated version of the Treaty establishing the European Community?

If the answer to the preceding question is ‘yes’, must the national court, before which an action is brought by a taxpayer who has not enjoyed exemption from the provincial tax on motive force, order the public authority which levied that tax to repay it to that taxpayer if it finds that, in law and in fact, it is not possible for the public authority which levied that tax to claim it from the taxpayer who enjoyed exemption from the tax on motive force?

Must a tax on motive force levied on motors used for transporting industrial gas by means of pipes under very high pressure, which requires the use of compression installations, be regarded as a charge having equivalent effect prohibited by Articles 25 et seq. of the consolidated version of the Treaty, if it is apparent that, de facto, it is levied by a province or a municipality on the transport of industrial gas outside its territorial limits, when in the same conditions the transport of natural gas is exempt from such a tax?

Must a tax on motive force levied on motors used for transporting industrial gas by means of pipes under very high pressure, which requires the use of compression installations, be regarded as an internal taxation measure, prohibited by Articles 90 et seq. of the Treaty, if it is apparent that the transport of natural gas is exempt from that tax?

5.	If the answer to the questions above is ‘yes’, is a taxpayer who has paid the tax on motive force justified in seeking the reimbursement of that tax from 16 July 1992, the date on which the Legros and Others judgment was given?

16.4.2005

Official Journal of the European Union

C 93/9

Reference for a preliminary ruling from the Cour de cassation de Belgique (Court of Cassation, Belgium) (First Chamber), by order of that court of 20 January 2005, in the case of the Belgian State v Ring Occasions and Fortis Banque

(Case C-42/05)

(2005/C 93/17)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by order of the Cour de cassation de Belgique (First Chamber), of 20 January 2005, received at the Court Registry on 3 February 2005, for a preliminary ruling in the proceedings between the Belgian State and Ring Occasions and Fortis Banque, on the following questions:

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

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

16.4.2005

Official Journal of the European Union

C 93/10

Reference for a preliminary ruling from the College van Beroep voor het Bedrijsleven by order of that court of 2 February 2005 in Maatschap Schonewille-Prins v Minister van Landbouw, Natuur en Voedselkwaliteit

(Case C-45/05)

(2005/C 93/18)

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 Bedrijsleven (Administrative Court for Trade and Industry) (Netherlands) of 2 February 2005, received at the Court Registry on 8 February 2005, for a preliminary ruling in the proceedings between Maatschap Schonewille-Prins and Minister van Landbouw, Natuur en Voedselkwaliteit on the following questions:

1.	Is Article 21 of Regulation (EC) No 1254/1999 (1) to be interpreted as meaning that any irregularity in complying with Regulation (EC) No 1760/2000 in respect of an animal results in the complete exclusion of slaughter premium for that animal?

2.	If question 1 is to be answered in the affirmative, is Article 21 of Regulation (EC) No 1254/1999 then binding, in particular regarding the resulting consequences?

3.	Are Articles 44 and 45 of Regulation (EC) No 2419/2001 (2) applicable to irregularities in complying with Regulation (EC) No 1760/2000? (3)

If question 3 is to be answered in the affirmative, does the correct application of Article 45 of Regulation (EC) No 2419/2001 in conjunction with Article 44 mean that the exclusion of slaughter premium is not applicable to an omission relating to the notification of information to the keeper of the computerised database if the information provided, such as in this case the dates of delivery, is factually entirely accurate (and was also correct from the very beginning and therefore did not need to be amended)? If this does not apply to every omission, does it apply in the situation at issue in this dispute, where the omission has consisted of the late provision of information (by a few days or a few weeks), with slaughter taking place some considerable time later?

Is Article 11 of Regulation (EEC) No 3887/92 (4) and/or Article 22 of Regulation (EC) No 1760/2000 and/or Article 47(2) of Regulation (EC) No 2419/2001 to be interpreted as meaning that a Member State is authorised to exclude the Community right to a slaughter premium or apply reductions to it by means of a national sanction to ensure compliance with the provisions of the Regulation?

6.	If question 5 is to be answered wholly or partially in the affirmative, do the exceptions from Community reductions and exclusions laid down at Community level, in particular Articles 44 and 45 of Regulation (EC) No 2419/2001, apply by analogy to national reductions and exclusions?

If question 6 is to be answered in the affirmative, does a correct application of Article 45 of Regulation (EC) No 2419/2001 in conjunction with Article 44 mean that omissions relating to the notification of information to the computerised database, in particular the late provision of information, cannot result in the exclusion of slaughter premium if the information in the register, such as in this case the date of delivery, is factually entirely accurate?

(1) Council Regulation (EC) No 1254/1999 of 17 May 1999 on the common organisation of the market in beef and veal (OJ 1999 L 160, p. 21).

(2) Commission Regulation (EC) No 2419/2001 of 11 December 2001 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes established by Council Regulation (EEC) No 3508/92 (OJ 2001 L 327, p. 11).

(3) Regulation (EC) No 1760/2000 of the European Parliament and of the Council of 17 July 2000 establishing a system for the identification and registration of bovine animals and regarding the labelling of beef and beef products and repealing Council Regulation (EC) No 820/97 (OJ 2000 L 204, p. 1).

(4) Commission Regulation (EEC) No 3887/92 of 23 December 1992 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes (OJ 1992 L 391, p. 36).

16.4.2005

Official Journal of the European Union

C 93/10

Action brought on 7 February 2005 by the Commission of the European Communities against Ireland

(Case C-46/05)

(2005/C 93/19)

Language of procedure: English

An action against Ireland was brought before the Court of Justice of the European Communities on 7 February 2005 by the Commission of the European Communities, represented by Nicola Yerrell, acting as agent, with an address for service in Luxembourg.

The Commission requests the Court

to find that Ireland has failed its obligations under the EC Treaty by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2000/79/EC of 27th 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 by failing to ensure that management and labour have introduced the necessary measures by agreement, and/or by failing to inform the Commission thereof;

and

b)	to condemn Ireland to bear the costs of the procedure.

Pleas in law and main arguments:

The period within which the directive had to be transposed expired on 1 December 2003.

(1) OJ L 302, 01.12.2000, p. 57

16.4.2005

Official Journal of the European Union

C 93/11

Reference for a preliminary ruling from the Korkein Hallinto-oikeus by decision of that court of 4 February 2005 in the case of Maija Terttu Inkeri Nikula

(Case C-50/05)

(2005/C 93/20)

Language of the case: Finnish

Reference has been made to the Court of Justice of the European Communities by decision of the Korkein Hallinto-oikeus (Supreme Administrative Court) (Finland) of 4 February 2005, received at the Court Registry on 8 February 2005, for a preliminary ruling in the proceedings concerning Maija Terttu Inkeri Nikula on the following question:

Is Article 33(1) of Regulation (EEC) No. 1408/71 (1) of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community to be interpreted as meaning that in a situation where a pensioner is entitled under Article 27 of the regulation to claim sickness and maternity benefits only from the institution of the place of residence and at the expense of that institution, the assessment of sickness insurance contributions in such a way that in the pensioner's State of residence both the pensions received from that State and the pensions he receives from another State are taken into account as the basis for determining the amount of those contributions – provided that the sickness insurance contributions do not exceed the amount of pensions awarded by the State of residence – is incompatible with that provision?

(1) OJ English Special Edition, Series I Chapter 1971 (II), p. 416.

16.4.2005

Official Journal of the European Union

C 93/11

Action brought on 9 February 2005 by the Commission of the European Communities against the Republic of Finland

(Case C-54/05)

(2005/C 93/21)

Language of the case: Finnish

An action against the Republic of Finland was brought before the Court of Justice of the European Communities on 9 February 2005 by the Commission of the European Communities, represented by M. van Beek and M. Huttunen, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

1.	declare that, by requiring a transfer licence for vehicles lawfully used and registered in another Member State, the Republic of Finland has failed to fulfil its obligations under Articles 28 EC and 30 EC;

2.	order the Republic of Finland to pay the costs.

Pleas in law and main arguments

It follows from the provisions of Regulation 1598/1995 on the registration of vehicles, in force in Finland, that a person permanently resident in Finland is obliged to apply for a temporary transfer licence for a vehicle previously lawfully registered and insured in another Member State when the vehicle is imported or transferred through Finland to another Member State or a non-member country. A person permanently resident in Finland may not thus use a vehicle previously registered and insured in another Member State in Finland without a transfer licence. Obtaining a transfer licence requires for its part that a person living in Finland importing a vehicle registered in another Member State stops at the frontier crossing point, where he can apply for the transfer licence and pay the fees for the licence. He cannot use the vehicle in Finland until the transfer licence is granted. A transfer licence is usually granted for seven days, after which the importer of the vehicle must register the vehicle in the Finnish vehicle traffic register if he wishes to use the vehicle in Finland other than temporarily under the transfer licence.

Under Article 28 EC, quantitative restrictions on imports and all measures having equivalent effect are prohibited between Member States.

Since a person living in Finland, when importing a vehicle registered in another Member State or transferring it through Finland to another Member State or a non-member country, has to stop at the Finnish frontier in order to apply for a transfer licence for the vehicle, the vehicle becomes the object of systematic frontier checks which clearly satisfy the characteristics of the quantitative restrictions on imports or measures having equivalent effect referred to in Article 28 EC.

Finland has not adduced any grounds to show that the only method of ensuring the effectiveness of monitoring is the application of a transfer licence system which in practice means, for a person permanently resident in Finland, a systematic obligation to comply with special frontier formalities, that is, an obligation to stop at the nearest frontier crossing point and apply for a transfer licence without any statutory guarantee that it will be possible for a vehicle lawfully registered, insured and tested in another Member State to be used in Finland. Such systematic frontier formalities are a fundamental restriction on the free movement of goods.

Should the Court of Justice consider that the transfer licence system could in general be based on Article 30 EC (quod non), the Commission submits that the seven-day period of validity of the transfer licence in accordance with the main provision of the regulation is in any event unreasonably short.

Having regard to the above points of view, the Commission submits that the transfer licence system in force in Finland under Regulation 1598/1995 is contrary to Articles 28 EC and 30 EC. Should the Court of Justice consider that the transfer licence system could in general be based on Article 30 EC, the Commission submits that the seven-day period of validity of the transfer licence in accordance with the main provision of the regulation is in any event contrary to Articles 28 EC and 30 EC.

16.4.2005

Official Journal of the European Union

C 93/12

Action brought on 9 February 2005 by the Commission of the European Communities against the Hellenic Republic

(Case C-56/05)

(2005/C 93/22)

Language of the case: Greek

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 9 February 2005 by the Commission of the European Communities, represented by Dimitris Triandafillou, Legal Adviser, with an address for service in Luxembourg.

The applicant claims that the Court should:

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/48/EC (1) of 3 June 2003 on taxation of savings income in the form of interest payments or, in any event, by failing to inform the Commission of such measures, the Hellenic Republic has failed to fulfil its obligations under Article 17 of that directive.

2.	order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing the directive into national law expired on 1 January 2004.

(1) OJ L 157 of 26.06.2003, p. 38.

16.4.2005

Official Journal of the European Union

C 93/13

Action brought on 10 February 2005 by the Commission of the European Communities against the Kingdom of Sweden

(Case C-58/05)

(2005/C 93/23)

Language of the case: Swedish

An action against the Kingdom of Sweden was brought before the Court of Justice of the European Communities on 10 February 2005 by the Commission of the European Communities, represented by L. Ström van Lier and N. Yerrell, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

Declare that, by failing to adopt the laws, regulations and other provisions necessary in order to comply with Council Directive 2000/79/EC (1) 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), or in any event by failing to inform the Commission of those provisions, the Kingdom of Sweden has failed to fulfil its obligations under Article 3 of that Directive, and

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

Pleas in law and main arguments

The period for implementing the Directive expired on 1 December 2003.

(1) OJ L 302 of 1 December 2000, p. 57.

16.4.2005

Official Journal of the European Union

C 93/13

Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia by order of that court of 14 December 2004 in WWF Italia and Others v Regione di Lombardia and with the intervention of the Associazione migratoristi italiani

(Case C-60/05)

(2005/C 93/24)

Language of the case: Italian

Reference has been made to the Court of Justice of the European Communities by order of the Tribunale Amministrativo Regionale per la Lombardia (Italy) of 14 December 2004, received at the Court Registry on 10 February 2005, for a preliminary ruling in the proceedings between WWF Italia and Others and Regione di Lombardia, and with the intervention of the Associazione migratoristi italiani, on the following questions:

Is Directive 79/409/EC (1) to be interpreted as meaning that, irrespective of the internal allocation of powers between the State and the Regions laid down by national systems, the Member States must prepare implementing provisions governing all situations considered deserving of protection by the same, in particular as regards ensuring that hunting derogations do not exceed the small numbers laid down in Article 9(1)(c)?

As regards in particular the numbers of hunting derogations, should Directive 79/409/EC be interpreted as meaning that the national implementing provision must refer to a criterion which is determined or can be determined, and even entrusted to qualified technical bodies, so that the exercise of hunting derogations is governed by criteria objectively establishing a quantitative level which may not be exceeded at national or regional level, having regard to the various environmental conditions which may prevail?

Does the national provision in Article 19 of Law No 157/92, by requiring the obligatory, but non-binding, opinion of INPS to determine that criterion without, however, providing for a process for reaching agreement between the regions on the binding determination of the distribution for each species of the numerical limits of hunting derogations set at national level as small numbers, constitute a proper application of Article 9 of the Directive?

Is the procedure for verifying the compatibility with Community provisions of the hunting derogations authorised by the Italian Regions under Article 19a of Law No 157/92, preceded by a period of notice and therefore requiring fixed periods of time, which are also necessary for the adoption and publication of the measure, during which the brief period of hunting derogations itself may expire, suitable for ensuring effective application of Directive 79/409/EC?

(1) OJ L 103 of 25.04.1979, p. 1.

16.4.2005

Official Journal of the European Union

C 93/14

Action brought on 14 February 2005 by the Commission of the European Communities against the Kingdom of the Netherlands

(Case C-66/05)

(2005/C 93/25)

Language of the case: Dutch

An action against the Kingdom of the Netherlands was brought before the Court of Justice of the European Communities on 14 February 2005 by the Commission of the European Communities, represented by Dennis Martin and Pieter van Nuffel, acting as Agents.

The Commission claims that the Court should:

1.	Declare that by taking into account, when calculating sickness insurance contributions, the pensions paid under the legislation of a Member State other than the Netherlands, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 33(1) of Regulation (EEC) No 1408/71; (1)

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

Pleas in law and main arguments

The purpose of the Algemene Wet Bijzondere Ziektekosten (General law on special sickness costs; ‘AWBZ’) is to cover the cost of treatment, care and nursing in the case of serious long-term sickness or invalidity. All inhabitants, that is to say all persons resident in the Netherlands, are insured. It is therefore a ‘national insurance’ scheme. Under the Wet Financiering Volksverzekeringen (Law on the financing of national insurance schemes) all insured persons are liable to pay contributions. The contribution is calculated on the basis of their income as a whole.

The result of this legislation is that a person who lives in the Netherlands and receives both a Netherlands pension and a pension under the legislation of another Member State is insured under the AWBZ for special sickness costs but is also liable to pay contributions. When calculating that contribution, both his Netherlands pension and his other pension are taken into account.

According to the Commission, Article 33(1) of the Regulation only permits the Netherlands pension to be taken into account when calculating that contribution; according to the Netherlands, the entire income may be taken into account, including the pension which the person concerned receives under the legislation of another Member State.

(1) (OJ, English special edition, 1971 (II), p. 416). Regulation amended and updated by Regulation (EC) No 118/97 (OJ L 28 of 30.1.1997, p. 1) and last amended by Regulation (EC) No 631/2004 of the European Parliament and of the Council (OJ L 100 of 6.4.2004, p. 1).

16.4.2005

Official Journal of the European Union

C 93/14

Reference for a preliminary ruling from the Finanzgericht München by order of that court of 1 February 2005 in Household of Jörg and Stefanie Wollny v Finanzgericht Landshut

(Case C-72/05)

(2005/C 93/26)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Finanzgericht München (Germany) of 1 February 2005, received at the Court Registry on 15 February 2005, for a preliminary ruling in the proceedings between Household of Jörg and Stefanie Wollny and Finanzgericht Landshut on the following question:

How is the term ‘full cost’ in Article 11(A)(1)(c) of Directive 77/388/EC (1) to be interpreted? Does the full cost for the privately used dwelling in a building forming, in its entirety, part of the assets of a business comprise, in addition to recurring expenses, annual depreciation for the wear and tear of buildings in accordance with the applicable national rules and/or the annual proportion of the acquisition and production cost - calculated on the basis of the applicable national period for adjustment of deductions – that has given rise to a right to deduct value added tax?

(1) OJ L 145 of 13.06.1977, p. 1.

16.4.2005

Official Journal of the European Union

C 93/15

Reference for a preliminary ruling from the Finanzgericht Köln by order of that court of 27 January 2005 in Herbert Schwarz and Marga Gootjes-Schwarz v Finanzamt Bergisch Gladbach

(Case C-76/05)

(2005/C 93/27)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Finanzgericht Köln (Germany) of 27 January 2005, received at the Court Registry on 16 February 2005, for a preliminary ruling in the proceedings between Herbert Schwarz and Marga Gootjes-Schwarz and Finanzamt Bergisch Gladbach on the following question:

Is it contrary to Articles 8(a)/18 (freedom of movement), 48/39 (freedom of movement for workers), 52/43 (freedom of establishment) or 59/49 (freedom to provide services) of the EC Treaty to treat payments of school fees to certain German schools, but not payments of school fees to schools in the rest of the European Community area, as special expenditure leading to a reduction of income tax, pursuant to Paragraph 10(1)(9) of the Einkommensteuergesetz (Law on Income Tax) as applicable in 1998 and 1999?

16.4.2005

Official Journal of the European Union

C 93/15

Reference for a preliminary ruling from the Tribunale di Livorno by order of that court of 22 December 2004 in Gentilini unberto v Dal Colle Industria Dolciaria S.p.A.

(Case C-78/05)

(2005/C 93/28)

Language of the case: Italian

Reference has been made to the Court of Justice of the European Communities by order of the Tribunale di Livorno (Italy) of 22 December 2004, received at the Court Registry on 17 February 2005, for a preliminary ruling in the proceedings between Gentilini unberto and Dal Colle Industria Dolciaria S.p.A.on the following questions:

(a)

Given the content of Article 17 of Council Directive 86/653 of 18 December 1986 (1) on the coordination of the laws of the Member States relating to self-employed commercial agents, can Article 19 be interpreted as meaning that it is permissible for the national implementing legislation to provide that the indemnity owed to an agent is payable under a collective agreement binding on its signatories, without regard to the conditions set out in the two indents of paragraph 2(a) of Article 17 and is calculated not in accordance with the criteria to be found in the directive but in accordance with the criteria set in the collective economic agreement itself, with the result that, in many cases, the level of the indemnity to be paid would have to be significantly lower than the ceiling provided for in the directive.

(b)

Should the indemnity be calculated individually by estimating the further commissions that the agent could have earned in the years following termination of the contract on the basis of the new customers he has brought or the growth in business that he has generated, using the criterion of equity only to adjust the amount, or are other, composite, methods of calculation permitted, which make greater use of the criterion of equity.

(1) OJ L 382 of 31.12.1986, p. 17.

16.4.2005

Official Journal of the European Union

C 93/16

Action brought on 17 February 2005 by the Commission of the European Communities against the Italian Republic

(Case C-79/05)

(2005/C 93/29)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 17 February 2005 by the Commission of the European Communities, represented by U. Wölker and A. Aresu, acting as Agents.

The Commission claims that the Court should:

declare that, by failing to adopt all precautionary measures practicable to prevent and minimise leakages of controlled substances, in particular in respect of the obligation to check annually for leakages fixed equipment with a refrigerating fluid charge of more than 3 kg, the Italian Republic has failed to fulfil its obligations under Article 17(1) of Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer; (1)

2.	order the Italian Republic to pay the costs.

Pleas in law and main arguments

On the basis of the available information, the Italian Republic does not appear to have yet adopted any measures in accordance with Article 17(1) of Regulation (EC) No 2037/2000.

(1) OJ L 244 of 29. 9. 2000, p. 1.

16.4.2005

Official Journal of the European Union

C 93/16

Reference for a preliminary ruling from the Tribunal Superior de Justicia de Castilla y León, Sala de lo Social, by order of that court of 28 January 2005 in Anacleto Cordero Alonso v Fondo de Garantía Salarial

(Case C-81/05)

(2005/C 93/30)

Language of the case: Spanish

Reference has been made to the Court of Justice of the European Communities by order of the Tribunal Superior de Justicia de Castilla y León, Sala de lo Social (High Court of Justice of Castille and León, Social Chamber) (Spain) of 28 January 2005, which was received at the Court Registry on 18 February 2005, for a preliminary ruling in the case of Anacleto Cordero Alonso against Fondo de Garantía Salarial.

The Tribunal Superior de Justicia de Castilla y León, Sala de lo Social, asks the Court of Justice to give a preliminary ruling on the following questions:

Do the obligation imposed on the Member States to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaty establishing the European Community or resulting from action taken by the institutions of the Community (Article 10 EC), and the principle of the primacy of Community law over national law imply, of themselves and without the need for specific provisions of national law, that national courts have the power to disapply all provisions of national law which are contrary to Community law, irrespective of the status of such provisions in the hierarchy of norms (regulations, laws and even a constitution)?

(a)

Where Spanish administrative and judicial institutions are required to rule on the right of an employee whose employer has been declared insolvent to receive, from the Fondo de Garantía Social, the compensation owed to him as a result of the termination of a contract of employment which, under national legislation, is guaranteed in the event of insolvency, are they applying Community law notwithstanding that Articles 1 and 3 of Directive 80/987/EEC (1) do not specifically provide for compensation in the event of the termination of the contract?

(b)

If so, when applying Directive 80/987/EC and the provisions of national law transposing the content thereof, are the Spanish administrative and judicial institutions bound by the principle of equality before the law and the prohibition of discrimination deriving from Community law, as defined by the interpretation thereof given by the Court of Justice of the European Communities, notwithstanding that that interpretation does not coincide with the interpretation in the case-law of the Spanish Constitutional Court of the equivalent fundamental right which is enshrined in the Spanish Constitution?

(c)

If so, does the fundamental right of equality before the law deriving from Community law impose an obligation to treat equally cases where the right of an employee to be compensated for the termination of his contract has been laid down in a court judgment and cases where that right is the result of an agreement between the employee and the employer, entered into under the supervision and with the approval of a court?

(a)

Where, prior to the entry into force of Directive 2002/74/EC, a Member State had already conferred on employees a statutory entitlement to protection by a guarantee institution in the event of an employer's insolvency with regard to compensation for the termination of a contract, is it possible to conclude that the Member State has been applying Community law since the entry into force of that directive on 8 October 2002, notwithstanding that the deadline for transposing the directive has not expired, where it governs the payment by the guarantee institution of such compensation for the termination of a contract in a case where an employer was declared insolvent after 8 October 2002?

(b)

If so, when applying Directive [2002/74/EC] and the provisions of national law transposing the content thereof, are the Spanish administrative and judicial institutions bound by the principle of equality before the law and the prohibition of discrimination deriving from Community law, as defined by the interpretation thereof given by the Court of Justice of the European Communities, notwithstanding that that interpretation does not coincide with the interpretation in the case-law of the Spanish Constitutional Court of the equivalent fundamental right which is enshrined in the Spanish Constitution?

(c)

(1) Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer (OJ 1980 L 283, p. 23).

16.4.2005

Official Journal of the European Union

C 93/17

Action brought on 17 February 2005 by the Commission of the European Communities against the Hellenic Republic

(Case C-82/05)

(2005/C 93/31)

Language of the case: Greek

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 17 February 2005 by the Commission of the European Communities, represented by Maria Patakia, Legal Adviser in its Legal Service, with an address for service in Luxembourg.

The Commission claims that the Court should:

declare that, by equating the process of final baking or reheating of ‘bake-off’ products with the full bread-making process and making it subject to the requirements of the legislation relating to bread-making, the Hellenic Republic introduces barriers to the import from other Member States and marketing in Greece of ‘bake-off’ products and infringes its obligations under Article 28 of the EC Treaty;

2.	order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

Following a complaint, the Commission was informed that, in the absence of specific legislation relating to bread and bakery products which are either semi-baked or fully baked and frozen, the ‘bake-off’ method is regarded by the Greek authorities as a full process for the preparation and baking of bread. The Greek authorities accordingly permit the short final baking or the reheating of the products in question at the point of sale only if the latter meets all the specifications that are required for bakeries, despite the fact that the ‘bake-off’ method comprises only the short final baking of semi-baked bread or the reheating of frozen fully-baked bread, and none of the previous stages of preparation and baking. Therefore, ‘bake-off’ products can be placed on the Greek market either by points of sale which meet the specifications for bakeries, after being baked to completion or reheated, or by general food stores as semi-baked or frozen bakery products to be baked or reheated later by the consumer. In both cases, in the Commission's view, ‘bake-off’ products are accordingly rendered less attractive for the consumer compared with other baked bakery products.

The Commission considers that the manner in which the Greek authorities interpret and apply the legislation in force effectively leads to a prohibition on the sale in general food stores (supermarkets) of ‘bake-off’ products that have been baked to completion or reheated, since ‘bake-off’ products are – mistakenly – regarded by the Greek authorities as subject to the enhanced requirements which generally apply to the preparation and baking of complete baked bread and bakery products.

According to the Commission, since the short final baking or the reheating outside a bakery is the specific characteristic that distinguishes ‘bake-off’ products from other bakery products, the application of the Greek legislation on bread-making to ‘bake-off’ products cannot be considered a matter relating to selling arrangements for the purpose of the judgment in Keck and Mithouard and therefore falls within the scope of Article 28 of the EC Treaty.

The Commission also submits that most of the conditions that are imposed on the ‘bake-off’ method are clearly unjustified and disproportionate, since that method consists only in the short final baking or the reheating of semi-baked or fully-baked frozen bread or bakery products. In addition, the Commission considers that those conditions are exceptionally burdensome for all general stores called on to meet the specifications for bakeries.

5.	The Commission therefore considers that the Hellenic Republic is infringing its obligations under Article 28 of the EC Treaty.

16.4.2005

Official Journal of the European Union

C 93/18

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

(Case C-84/05)

(2005/C 93/32)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 18 February 2005 by the Commission of the European Communities, represented by M. Konstantinidis and A. Aresu, members of its legal service, acting as Agents.

The Commission claims that the Court should:

1.	declare that, by failing, hitherto, to adopt the legislation necessary to apply Council Directive 96/61/EC (1) of 24 September 1996 concerning integrated pollution prevention and control, to new installations, has failed to fulfil its obligations under Article 21(1) thereof;

2.	order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for the transposition of the directive expired on 30 October 1999.

(1) OJ L 257 of 10. 10. 1996, p. 26.

16.4.2005

Official Journal of the European Union

C 93/18

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

(Case C-85/05)

(2005/C 93/33)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 18 February 2005 by the Commission of the European Communities, represented by S. Pardo Quintillán and D. Recchia, acting as Agents.

The applicant claims that the Court should:

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2000/60/EC (1) of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy or, in any event, by failing to communicate those provisions to the Commission, the Italian Republic has failed to fulfil its obligations under Article 24(1) of that directive;

—	order the Italian Republic to pay the costs.

Pleas in law and main arguments:

The period for transposition of the directive expired on 22 December 2003.

(1) OJ L 327 of 22.12.2000, p. 1.

16.4.2005

Official Journal of the European Union

C 93/19

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

(Case C-86/05)

(2005/C 93/34)

Language of the case: Italian

The applicant claims that the Court should:

—

declare that, by failing to adopt the provisions necessary to comply with Commission Directive 2003/32/EC (1) of 23 April 2003 introducing detailed specifications as regards the requirements laid down in Council Directive 93/42/EEC with respect to medical devices manufactured utilising tissues of animal origin or, in any event, by failing to communicate those provisions to the Commission, the Italian Republic has failed to fulfil its obligations under Article 8(1) of that directive;

—	order the Italian Republic to pay the costs.

Pleas in law and main arguments:

The period for transposition of the directive expired on 1 January 2004.

(1) OJ L 105 of 26.04.2003, p. 18.

16.4.2005

Official Journal of the European Union

C 93/19

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

(Case C-87/05)

(2005/C 93/35)

Language of the case: Italian

The applicant claims that the Court should:

—

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2003/12/EC (1) of 3 February 2003 on the reclassification of breast implants in the framework of Directive 93/42/EEC (2) concerning medical devices or, in any event, by failing to communicate those provisions to the Commission, the Italian Republic has failed to fulfil its obligations under Article 3(1) of that directive;

—	order the Italian Republic to pay the costs.

Pleas in law and main arguments:

The period for transposition of the directive expired on 1 August 2003.

(1) OJ L 28 of 04.02.2003, p. 43.

(2) OJ L 169 of 12.07.1993, p. 1.

16.4.2005

Official Journal of the European Union

C 93/19

Action brought on 18 February 2005 by the Commission of the European Communities against the Republic of Finland

(Case C-88/05)

(2005/C 93/36)

Language of the case: Finnish

An action against the Republic of Finland was brought before the Court of Justice of the European Communities on 18 February 2005 by the Commission of the European Communities, represented by M. Huttunen and K. Simonsson, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

declare that, by failing to bring into force all the laws, regulations and administrative provisions necessary to comply with Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 (1) establishing a Community vessel traffic monitoring and information system and repealing Council Directive 93/75/EEC, or at least by failing to communicate them to the Commission, the Republic of Finland has failed to comply with its obligations under the directive;

2.	order the Republic of Finland to pay the costs.

Pleas in law and main arguments

The period prescribed for implementation of the directive expired on 5 February 2004.

(1) OJ L 208 of 5.8.2002, p. 10.

16.4.2005

Official Journal of the European Union

C 93/20

Reference for a preliminary ruling from the Bundesverwaltungsgericht by judgment of that court of 9 December 2004 in Emsland-Stärke GmbH v Bezirksregierung Weser-Ems

(Case C-94/05)

(2005/C 93/37)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by judgment of the Bundesverwaltungsgericht (Federal Administrative Court) (Germany) of 9 December 2004, received at the Court Registry on 22 February 2005, for a preliminary ruling in the proceedings between Emsland-Stärke GmbH and Bezirksregierung Weser-Ems on the following questions

(a)

Does Article 13(4) in conjunction with Article 4(5) of Regulation (EC) No 97/95 as amended by Regulation (EC) No 1125/96 apply where a contract said to be a cultivation contract is concluded and is accepted by the competent authority under Article 4(2) and (3) of the Regulation but where the contract is not concluded with a potato producer but with a dealer who obtains the potatoes directly or indirectly from potato producers?

(b)	Does Article 13(4) of Regulation (EC) No 97/95 as amended by Regulation (EC) No 1125/96 require the starch-producing undertaking to have exceeded its sub-quota by taking delivery of the potatoes?

(a)	Does the system of sanctions provided for in Article 13(4) of Regulation (EC) No 97/95 as amended by Regulation (EC) No 1125/96, by contradistinction to Article 13(3) of that Regulation, satisfy Community-law standards of certainty?

(b)

Is the sanction provided for in Article 13(4) of Regulation (EC) No 97/95 as amended by Regulation (EC) No 1125/96, in view of its amount, necessary to protect the financial interests of the Community within the meaning of Article 2(1) of Regulation (EC, Euratom) No 2988/95 in cases such as this? Is it commensurate with protection of the financial interests of the Community in cases such as this?

Is an irregularity liable to a sanction under Article 13(4) of Regulation (EC) No 97/95 as amended by Regulation (EC) No 1125/96 caused by negligence within the meaning of Article 5(1) of Regulation (EC, Euratom) No 2988/95 even if the authority has approved the premium in full knowledge of the facts?

16.4.2005

Official Journal of the European Union

C 93/21

Action brought on 21 February 2005 by the Commission of the European Communities against the Hellenic Republic

(Case C-95/05)

(2005/C 93/38)

Language of the case: Greek

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 21 February 2005 by the Commission of the European Communities, represented by Knut Simonsson and Georgios Zavvos, of the Legal Service, with an address for service in Luxembourg.

The applicant claims that the Court should:

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/59/EC (1) of the European Parliament and of the Council of 27 June 2002 establishing a Community vessel traffic monitoring and information system and repealing Council Directive 93/75/EEC, and in any event by failing to inform the Commission of such measures, the Hellenic Republic is failing to fulfil its obligations under that directive.

2.	order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing the directive into national law expired on 5 February 2004.

(1) OJ L 208 of 5.08.2002, p. 10.

16.4.2005

Official Journal of the European Union

C 93/21

Action brought on 21 February 2005 by the Commission of the European Communities against the Hellenic Republic

(Case C-96/05)

(2005/C 93/39)

Language of the case: Greek

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 21 February 2005 by the Commission of the European Communities, represented by Gerald Braun and Georgios Zavvos, of the Legal Service, with an address for service in Luxembourg.

The applicant claims that the Court should:

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/65/EC of the European Parliament and of the Council of 27 September 2001 amending Directives 78/660/EEC, 83/349/EEC and 86/635/EEC as regards the valuation rules for the annual and consolidated accounts of certain types of companies as well as of banks and other financial institutions, (1) and in any event by failing to inform the Commission of such measures, the Hellenic Republic is failing to fulfil its obligations under that directive.

2.	order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing the directive into national law expired on 1 January 2004.

(1) OJ L 283 of 27.10.2001, p. 28.

16.4.2005

Official Journal of the European Union

C 93/21

Action brought on 24 February 2005 by the Commission of the European Communities against the Republic of Finland

(Case C-99/05)

(2005/C 93/40)

Language of the case: Finnish

An action against the Republic of Finland was brought before the Court of Justice of the European Communities on 24 February 2005 by the Commission of the European Communities, represented by D. Martin and I. Koskinen, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

declare that, by failing to bring into force as regards the province of Åland (Ahvenanmaa) the laws, regulations and administrative provisions necessary to comply with Council Directive 2000/78/EC of 27 November 2000 (1) establishing a general framework for equal treatment in employment and occupation, or at least by failing to communicate them to the Commission, the Republic of Finland has failed to fulfil its obligations under the directive;

2.	order the Republic of Finland to pay the costs.

Pleas in law and main arguments

The period prescribed for implementation of the directive expired on 2 December 2003.

(1) OJ L 303 of 2.12.2000, p. 16.

16.4.2005

Official Journal of the European Union

C 93/22

Action brought on 3 March 2005 by the Commission of the European Communities against the Republic of Finland

(Case C-105/05)

(2005/C 93/41)

Language of the case: Finnish

An action against the Republic of Finland was brought before the Court of Justice of the European Communities on 3 March 2005 by the Commission of the European Communities, represented by D. Martin and I. Koskinen, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

declare that the Republic of Finland, in calculating social security contributions, has failed to fulfil its obligations under Article 33(1) of Council Regulation (EEC) No 1408/71 of 14 June 1971 (1) on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community;

2.	order the Republic of Finland to pay the costs.

Pleas in law and main arguments

Finland takes account in accordance with national legislation, the Law on Sickness Insurance (364/1963), when determining the social security contributions of a pensioner living in Finland, in addition to the pension income paid by Finland also that paid by other Member States. The Commission submits that the taking into account of pension income paid by another Member State when determining the basis of payment of social security contributions is contrary to Article 33(1) of Council Regulation (EEC) No 1408/71 and the case-law of the Court of Justice (Case C-389/99 Rundgren).

(1) OJ, English Special Edition 1971 (II), p. 416.

16.4.2005

Official Journal of the European Union

C 93/22

Action brought on 3 March 2005 by the Commission of the European Communities against the Republic of Finland

(Case C-107/05)

(2005/C 93/42)

Language of the case: Finnish

An action against the Republic of Finland was brought before the Court of Justice of the European Communities on 3 March 2005 by the Commission of the European Communities, represented by U. Wölker and P. Aalto, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

declare that, by failing to incorporate Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 (1) establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC into its national legislation as regards the province of Åland (Ahvenanmaa), or at least by failing to communicate that to the Commission, the Republic of Finland has failed to fulfil its obligations under the directive;

2.	order the Republic of Finland to pay the costs.

Pleas in law and main arguments

The period prescribed for implementation of the directive expired on 31 December 2003.

(1) OJ L 275 of 25.10.2003, p. 32.

16.4.2005

Official Journal of the European Union

C 93/24

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 3 February 2005

in Case T-19/01 Chiquita Brands International, Inc., and Others v Commission of the European Communities (1)

(Common organisation of the markets - Bananas - Action for compensation - Regulation No 2362/98 - Agreement establishing the WTO and annexed agreements - Recommendations and rulings of the dispute settlement body of the WTO)

(2005/C 93/47)

Language of the case: English

In Case T-19/01: Chiquita Brands International, Inc., established in Trenton, New Jersey (United States), Chiquita Banana Co. BV, established in Breda (Netherlands), and Chiquita Italia, SpA, established in Rome (Italy), represented by C. Pouncey, solicitor, and L. Van Den Hende, avocat, with an address for service in Luxembourg, against the Commission of the European Communities, (Agents: initially C. Van der Hauwaert and C. Brown, then L. Visaggio, C. Brown and M. Niejahr, and finally L. Visaggio and C. Brown, assisted by N. Khan, barrister, with an address for service in Luxembourg), — action for compensation in respect of loss allegedly suffered by reason of the adoption and maintaining in force of Commission Regulation (EC) No 2362/98 of 28 October 1998, laying down detailed rules for the implementation of Council Regulation (EEC) No 404/93 regarding imports of bananas into the Community (OJ 1998 L 293, p. 32), — the Court of First Instance (Fifth Chamber, Extended Composition), composed of P. Lindh, President, R. García-Valdecasas, J.D. Cooke, P. Mengozzi and M.E. Martins Ribeiro, Judges; J. Plingers, Administrator, for the Registrar, gave a judgment on 3 February 2005, in which it:

1.	Dismisses the action;

2.	Orders the applicant to pay its own costs and those of the Commission.

(1) OJ C 108 of 7.4.2001.

16.4.2005

Official Journal of the European Union

C 93/24

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 3 February 2005

in Case T-139/01 Comafrica SpA and Dole Fresh Fruit Europe Ltd & Co v Commission of the European Communities (1)

(Common organisation of the markets - Bananas - Imports from ACP States and third countries - Regulation (EC) No 896/2001 - Regulation (EC) No 1121/2001 - Action for annulment - Admissibility - Person individually concerned - Action for damages)

(2005/C 93/48)

Language of the case: English

In Case T-139/01: Comafrica SpA, established in Genoa (Italy) and Dole Fresh Fruit Europe Ltd & Co., established in Hamburg (Germany), represented by B. O'Connor, Solicitor, and P. Bastos-Martin, Barrister, supported by Simba SpA, established in Milan (Italy), represented by S. Carbone and F. Munari, lawyers, against the Commission of the European Communities, (Agents: initially L. Visaggio, M. Niejahr and K. Fitch, and subsequently L. Visaggio and K. Fitch, with an address for service in Luxembourg), supported by the Kingdom of Spain, (Agents: initially R. Silva de Lapuerta, and subsequently L. Fraguas Gadea, with an address for service in Luxembourg) — action, first, for annulment of Commission Regulation (EC) No 896/2001 of 7 May 2001 laying down detailed rules for applying Council Regulation (EEC) No 404/93 as regards the arrangements for importing bananas into the Community (OJ 2001 L 126, p. 6), and of Commission Regulation (EC) No 1121/2001 of 7 June 2001 fixing the adjustment coefficients to be applied to each traditional operator's reference quantity under the tariff quotas for imports of bananas (OJ 2001 L 153, p. 12), and, second, an action for compensation for damage allegedly caused to the applicants by the adoption of Regulations No 896/2001 and No 1121/2001 — the Court of First Instance (Fifth Chamber), composed of P. Lindh, President, R. García-Valdecasas and J.D. Cooke, Judges; J. Plingers, Administrator, for the Registrar, has given a judgment on 3 February 2005, in which it:

1.	Dismisses as inadmissible the claim for annulment;

2.	Dismisses as unfounded the claim for compensation;

3.	Orders the applicants to bear their own costs and those incurred by the Commission in the main proceedings and in the interim proceedings;

4.	Orders the intervening parties to bear their own costs.

(1) OJ C 245 of 1.9.2001.

16.4.2005

Official Journal of the European Union

C 93/25

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 15 February 2005

in Case T-256/01 Norman Pyres v Commission of the European Communities (1)

(Officials - Selection procedure for the recruitment of temporary agents - Non-admission to the tests - Age limit - Principle of non-discrimination)

(2005/C 93/49)

Language of the case: French

In Case T-256/01: Norman Pyres, a former temporary agent of the Commission of the European Communities, residing in Brussels (Belgium), represented by G. Vandersanden and L. Levi, lawyers, against the Commission of the European Communities (Agents: J. Currall and F. Clotuche-Duvieusart, with an address for service in Luxembourg) — action for annulment of the ‘Research’ Selection Committee's decisions COM/R/A/14/2000 of 1 December 2000, COM/R/A/07/2000 of 4 December 2000, and COM/R/A/10/2000 of 7 December 2000, not to admit the applicant to the selection procedures organised by the ‘Research’ Directorate General on the ground that he did not satisfy the condition relating to the age limit, — the Court of First Instance (First Chamber), composed of B. Vesterdorf, President, P. Mengozzi and I. Labucka, Judges; H. Jung, Registrar, gave a judgment on 15 February 2005, in which it:

1.	Dismisses the action.

2.	Orders each party to bear its own costs.

(1) OJ C 17 of 19.1.2002.

16.4.2005

Official Journal of the European Union

C 93/25

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 15 February 2005

in Case T-169/02 Cervecería Modelo, SA de CV v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Opposition proceedings - Application for a Community figurative mark representing a bottle of beer including the verbal element ‘negra modelo’ - Earlier national figurative mark Modelo - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2005/C 93/50)

Language of the case: Spanish

In Case T-169/02: Cervecería Modelo, SA de CV, established in Mexico, represented by C. Lema Devesa and A. Velázquez Ibáñez, lawyers, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: J. Crespo Carrillo and I. de Medrano Caballero), the other party to the proceedings before the OHIM Board of Appeal, and intervener before the Court of First Instance, being Modelo Continente Hipermercados, SA, established in Senhora da Hora (Portugal), represented by N. Cruz, J. Pimenta and T. Colaço Dias, lawyers — action brought against the decision of the Third Board of Appeal of OHIM of 6 March 2002 (Cases R 536/2001-3 and R 674/2001-3), concerning opposition proceedings between Cervecería Modelo, SA de CV and Modelo Continente Hipermercados, SA — the Court of First Instance (First Chamber), composed of B. Vesterdorf, President, P. Mengozzi and I. Labucka, Judges; H. Jung, Registrar, gave a judgment on 15 February 2005, in which it:

1.	Dismisses the application;

2.	Orders the applicant to pay the costs.

(1) OJ C 180 of 27.7.2002.

16.4.2005

Official Journal of the European Union

C 93/26

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 15 February 2005

in Case T-296/02 Lidl Stiftung & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Opposition - Likelihood of confusion - Application for Community word mark LINDENHOF - Earlier word and figurative mark LINDERHOF - Article 8(1)(b) of Regulation (EC) No 40/94)

(2005/C 93/51)

Language of the case: German

In Case T-296/02: Lidl Stiftung & Co. KG, established in Neckarsulm (Germany), represented by P. Groß, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: A. von Mühlendahl, B. Müller and G. Schneider), the other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance, being REWE-Zentral AG, established in Cologne (Germany), represented by M. Kinkeldey, lawyer — action against the decision of the Third Board of Appeal of OHIM of 17 July 2002 (Case R 0036/2002-3), relating to opposition proceedings between Lidl Stiftung & Co. KG and REWE-Zentral AG — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A.W.H. Meij and N.J. Forwood, Judges; I. Natsinas, Administrator, for the Registrar, gave a judgment on 15 February 2005, in which it:

1.	Dismisses the action;

2.	Orders the applicant to pay the costs.

(1) OJ C 289, 23.11.2002.

16.4.2005

Official Journal of the European Union

C 93/26

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 1 February 2005

in Case T-57/03 Société provençale d'achat et de gestion (SPAG) SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community mark - Opposition proceedings - Application for Community word mark HOOLIGAN - Earlier word marks OLLY GAN - Matters of fact or of law outside OHIM's jurisdiction - Admissibility - Likelihood of confusion)

(2005/C 93/52)

Language of the case: German

In Case T-57/03: Société provençale d'achat et de gestion (SPAG) SA, established in Marseille (France), represented by K. Manhaeve, lawyer, with an address for service in Luxembourg, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: U. Pfleghar and G. Schneider), the other parties to the proceedings before the OHIM Board of Appeal, intervening before the Court of First Instance, being Frank Dann and Andreas Backer, residing in Frankfurt-am-Main (Germany), represented by P. Baronikians, lawyer — action brought against the decision of 5 December 2002 of the Second Board of Appeal of OHIM (Case R 1072/2000-2), relating to opposition proceedings concerning the marks HOOLIGAN and OLLY GAN — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, N.J. Forwood and S. Papasavvas, Judges; J. Palacio González, Principal Administrator, for the Registrar, has given a judgment on 1 February 2005, in which it:

1.	Dismisses the action;

2.	Orders the applicant to pay the costs.

(1) OJ C 112 of 10.5.2003.

16.4.2005

Official Journal of the European Union

C 93/27

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 3 February 2005

in Case T-137/03 Ornella Mancini v Commission of the European Communities (1)

(Officials - Post of medical officer - Amendment to the vacancy notice - Misuse of powers - Composition of the Selection Board - Comparative examination of merits - Manifest error of assessment - Equal treatment for men and women - Action for damages)

(2005/C 93/53)

Language of the case: French

In Case T-137/03: Ornella Mancini, official of the Commission of the European Communities, residing in Brussels (Belgium), represented by É. Boigelot, lawyer, against Commission of the European Communities (Agents: C. Berardis-Kayser and G. Berscheid, assisted by B. Wägenbaur, lawyer, with an address for service in Luxembourg) — application, first, for annulment of the Commission's decision not to appoint the applicant to the post of medical officer at the ‘Medical service – Brussels’ unit and of the decision to appoint another candidate to that post and, second, for damages — the Court of First Instance (Fourth Chamber), composed of H. Legal, President, V. Tiili and M. Vadapalas, Judges; I. Natsinas, Administrator, for the Registrar, gave a judgment on 3 February 2005, in which it:

1.	Dismisses the application.

2.	Orders each party to bear its own costs.

(1) OJ C 158 of 5.7.2003.

16.4.2005

Official Journal of the European Union

C 93/27

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 3 February 2005

in Case T-172/03 Nicole Heurtaux v Commission of the European Communities (1)

(Officials - Refusal of promotion - Absence of statement of reasons - Comparative examination of merits - Action for annulment)

(2005/C 93/54)

Language of the case: French

In Case T-172/03: Nicole Heurtaux, an official of the Commission of the European Communities, residing in Brussels (Belgium), represented by J.-N. Louis, É. Marchal, A. Coolen and S. Orlandi, lawyers, with an address for service in Luxembourg, against Commission of the European Communities (Agents: by J. Curall and V. Joris, with an address for service in Luxembourg) — application for annulment of the Commission's decision of 14 August 2002 not to promote the applicant to Grade B 2 under the 2002 promotion exercise — the Court of First Instance (Fifth Chamber), composed of P. Lindh, President, J.D. Cooke and D. Šváby, Judges; I. Natsinas, Administrator, for the Registrar, gave a judgment on 3 February 2005, in which it:

1.	Annuls the Commission's decision of 14 August 2002 not to promote the applicant to Grade B 2 under the 2002 promotion exercise.

2.	Orders the Commission to pay the costs.

(1) OJ C 184 of 2.8.2003.

16.4.2005

Official Journal of the European Union

C 93/27

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 16 February 2005

in Case T-284/03 Rosalinda Aycinena v the Commission of the European Communities (1)

(Officials - Appointment to higher grade in career - Classification in step)

(2005/C 93/55)

Language of the case: French

In Case T-284/03: Rosalinda Aycinena, residing in Brussels, represented by J.-N. Louis, E. Marchal, A. Coolen and S. Orlandi, lawyers, with an address for service in Luxembourg, against the Commission of the European Communities (Agent: C. Berardis-Kayser) – action for annulment of the Commission's decision fixing her definitive classification on appointment at Grade LA 6, step 1, the Court of First Instance (Third Chamber), composed of M. Jaeger, President, V. Tiili and O. Czúcz, Judges; H. Jung, Registrar, has given a judgment on 16 February 2005, in which it:

1.	Dismisses the action;

2.	Orders the defendant to pay the costs.

(1) OJ C 251 of 18 October 2003.

16.4.2005

Official Journal of the European Union

C 93/28

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 16 February 2005

in Case T-354/03 Gemma Reggimenti v European Parliament (1)

(Officials - Reimbursement of dependent child's travel expenses - Division if two married officials divorce)

(2005/C 93/56)

Language of the case: French

In Case T-354/03: Gemma Reggimenti, an official of the European Parliament, residing in Woluwé-Saint-Lambert (Belgium), represented by C. Junion, lawyer, with an address for service in Luxembourg, against the European Parliament (Agents: L.G. Knudsen and A. Bencomo Weber, with an address for service in Luxembourg) — action for annulment of the Parliament's decision of 27 May 2003, confirmed by letter of 17 July 2003, by which it decided, under Article 8 of Annex VII to the Staff Regulations to divide, from 2002, the reimbursement of travelling expenses for the applicant's daughter between the two divorced officials — the Court of First Instance (Third Chamber), composed of J. Azizi, President, M. Jaeger and O. Czúcz, Judges; I. Natsinas, Administrator, for the Registrar, gave a judgment on 16 February 2005, in which it:

1.	Declares the action inadmissible as regards the fixed-rate travel expenses prior to 2002.

2.	Declares the action inadmissible also in so far as it contains an application for an injunction.

3.	Dismisses the reminder of the claims in the application as unfounded.

4.	Orders each party to bear its own costs.

(1) OJ C 7 of 10.1.2004.

16.4.2005

Official Journal of the European Union

C 93/28

ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

of 31 January 2005

in Case T-447/04 R Capgemini Nederland BV v Commission of the European Communities

(Public contracts for services - Community tendering procedure - Interim proceedings - Prima facie case - Urgency)

(2005/C 93/57)

Language of the case: English

In Case T-447/04 R: Capgemini Nederland BV, established in Utrecht (Netherlands), represented by M. Meulenbelt and H. Speyart, lawyers, against Commission of the European Communities (Agent: L. Parpala, with an address for service in Luxembourg) — application for suspension of operation, first, of the Commission's decision to reject the bid submitted by the applicant in response to a call for tenders (JAI-C3-2003-01) for the development and installation of a second-generation Schengen Information System (SIS II) and for the possible development and installation of a Visa Information System (VIS) in the field of justice and home affairs and of its decision to award the contract to another bidder and, secondly, of the Commission's decision to conclude a contract relating to the SIS II and VIS systems with another bidder — the President of the Court of First Instance has made an order on 31 January 2005, the operative part of which is as follows:

1.	The application for interim measures is dismissed.

2.	Costs are reserved.

16.4.2005

Official Journal of the European Union

C 93/29

Action brought on 23 December 2004 by NORTRAIL Transport GmbH against the Commission of the European Communities

(Case T-496/04)

(2005/C 93/58)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 23 December 2004 by NORTRAIL Transport GmbH of Kiel (Germany), represented by J Krause, lawyer.

The applicant claims that the Court should

—	annul the decision of the Commission dated 1 October 2004 (REM 15/02) on the application by the company NORTRAIL Transport GmbH for repayment of import duties pursuant to Article 239 of the Customs Code Regulation (EEC) No 2913/92;

—	order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Since July 1995, the applicant has continuously imported consignments of various fishery products from Norway. In the context of tariff quotas opened pursuant to Council Regulation (EC) No 3061/95 (1), the applicant applied for the duty-free release of the goods for free circulation with effect from 1 September 1995. The competent customs office determined that the customs exemption which the applicant had applied for could not be granted in respect of a certain number of consignments, and that the standard tariff rate applied. On that basis, the relevant customs office demanded that the applicant pay import duties for the release for free circulation of the goods concerned. The applicant paid part of the import duties.

The applicant argues that there are special circumstances within the meaning of Article 239 of Regulation (EEC) No 2913/1992 (2), as a result of which it is entitled to repayment and remission of import duties.

The applicant bases this assertion, among other, on the argument that a Community measure had been adopted with retrospective effect. German customs offices were informed of the opening of tariff quotas with effect from 1 September 1995 by a notice from the German Federal Ministry of Finance on 31 August 1995. On 4 October 1995, however, German customs offices were notified that those quotas had in fact been opened retrospectively with effect from 1 July 1995. In the period from 1 September 1995 when the applicant applied for the duty-free release for free circulation of the goods concerned, some of those quotas had already been used up, which to some extent was the case even before 1 September 1995, given the retrospective opening of quotas with effect from 1 July 1995.

The applicant further submits that the measure adopted is inadequate and misleading, and that the discrepancy between the date the Community measure was published and the opening date of the tariff quotas which the measure regulates and which take effect retrospectively, is misleading. This makes it possible for national customs authorities to interpret the opening date of the tariff quotas differently, which infringes the principle of non-discrimination.

(1) Council Regulation (EC) No 3061/95 of 22 December 1995 amending Regulation (EC) No 992/95 opening and providing for the administration of Community tariff quotas for certain agricultural and fishery products originating in Norway (OJ 1995 L 327, p. 1).

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

16.4.2005

Official Journal of the European Union

C 93/29

Action brought on 18 January 2005 by Wieland Werke AG, Buntmetall Amstetten Ges.m.b.H. and Austria Buntmetall AG against the Commission of the European Communities

(Case T-11/05)

(2005/C 93/59)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 18 January 2005 by Wieland Werke AG, Ulm (Germany), Buntmetall Anstetten Ges.m.b.H., Amstetten (Austria), and Austria Buntmetall AG, Enzesfeld (Austria), represented by R. Bechtold and U. Soltész, lawyers.

The applicants claim that the Court should:

—	annul the decision of the Commission of 3 September 2004, amended on 20 October 2004 (Case COMP/E-1/38.069 – Copper plumbing tubes);

—	in the alternative, reduce the fines imposed in the decision;

—	order the Commission to pay the costs of the applicants.

Pleas in law and main arguments

In the contested decision the Commission imposed a fine on the applicants on the ground that they had infringed Article 81(1) EC by participating in a series of agreements and concerted practices consisting of price-fixing and market-sharing in the copper plumbing tubes sector.

The applicants object to that decision and argue that the renewed imposition of fines in the present case offends against the basic principle ne bis in idem, as the applicants had already been found by the Commission to have committed a largely similar infringement in the case of industrial tubes (COMP/E-1/38.240). The applicants submit that, in determining the amount of the fines, the Commission should have at least taken the fines which had already been imposed into account and that it is impermissible to divide up the single set of copper tubes proceedings into separate industrial tubes proceedings and plumbing tubes proceedings.

Furthermore, the applicants argue that the fine is excessive and that mandatory procedural principles, such as the duty under Article 253 EC to state the reasons on which a decision is based and the principles of proportionality and equal treatment were disregarded when the amount of the fine was being determined. The applicants base their arguments inter alia on the following provisions:

—	in assessing the gravity of the infringement, the Commission based its conclusions on an inaccurate and insufficient assessment of the type of infringement, its effects on the market and the geographical scope of the agreements,

—	in differentiating between the undertakings concerned, the Commission should not only have taken their market share into consideration, but also the size of the undertakings in absolute terms,

—

in its decision, the Commission did not give any indication as to which principles it applied in determining the specific basic amount of the fines and did not make it unambiguously clear in its notice of objections that it was working on the premise that the rules on competition had been infringed in a particularly serious manner,

—

in increasing the fine on account of the duration of the agreements, the Commission incorrectly applied its guidelines on the method of setting fines (1) and additionally, misjudged the fact that the limitation period of the right of recourse for important issues raised in the case had already expired,

—	the Commission failed to take account of fundamental attenuating circumstances, such as the difficult state of the market, the low percentage return on sales in the copper piping market sector or the fact that the agreements were terminated immediately after the searches.

In addition, the Commission infringed the principle of equal treatment in that, inter alia, it unlawfully discriminated between undertakings involved in the cartel by applying a greater fine reduction to certain undertakings on account of cooperation outside the Leniency Notice.

Finally, the applicants claim that in terms of determining the starting amount of the fine Article 23(2) of Regulation (EC) No 1/2003 (2) infringes the principle of legal certainty and consequently, overriding Community law in that it grants the Commission a virtually unfettered discretion.

(1) Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ C 9, 14.1.1998, p. 3).

(2) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition under Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

16.4.2005

Official Journal of the European Union

C 93/30

Action brought on 25 January 2005 by Sergio Rossi S.p.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-31/05)

(2005/C 93/60)

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 25 January 2005 by Sergio Rossi S.p.A., established in San Mauro Pascoli (Italy), represented by A. Ruo, lawyer.

K & L Ruppert Stiftung & Co. Handels-KG, established in Weilheim (Germany) was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

—	annul the contested decision;

—	order the Office for Harmonisation in the Internal Market to pay the applicant's costs.

Pleas in law and main arguments

Applicant for Community trade mark:	K & L Ruppert Stiftung & Co. Handels-KG
Community trade mark concerned:	The word mark ‘ROSSI’ for goods in class 25 (Outer and underclothing; gloves, collar protectors, scarves, neckties, headgear) — application No 876 094
Proprietor of mark or sign cited in the opposition proceedings:	Sergio Rossi
Trade mark or sign cited in opposition:	The national and international, word and figurative marks ‘SERGIO ROSSI’ for goods class 25 (articles of clothing, including boots, shoes and slippers, scarves, neck-ties, …)
Decision of the Opposition Division:	Upholding of the opposition
Decision of the Board of Appeal:	Annulment of the decision of the Opposition Division
Pleas in law:	Violation of Article 8 of Council Regulation No 40/94.

16.4.2005

Official Journal of the European Union

C 93/31

Action brought on 31 January 2005 by Bayer CropScience AG, Makhteshim Agan Holding BV, Alfa Agricultural Supplies S.A. and Aragonesas Agro S.A. against the Commission of the European Communities

(Case T-34/05)

(2005/C 93/61)

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 31 January 2005 by Bayer CropScience AG, established in Monheim (Germany), Makhteshim Agan Holding BV, established in Amsterdam (The Netherlands), Alfa Agricultural Supplies S.A. established in Athens (Greece) and Aragonesas Agro S.A. established in Madrid (Spain), represented by C. Mereu and K. Van Maldegem, lawyers.

The applicants claim that the Court should:

—	declare that the defendant has failed to comply with his obligations under Community law to review scientific data submitted by the applicants for the review of endosulfan under Directive 91/414/EEC and to grant them a due process during the review;

—	order the defendant to comply with his obligations under Community law and act as requested by the applicants by reviewing and considering all data submitted for the endosulfan review and by granting them a due process, including the right of defence and a fair hearing;

—	order the Defendant to pay all costs and expenses in these proceedings.

Pleas in law and main arguments

By letter dated 24 September 2004 the applicants requested the Commission to review scientific data submitted by the applicants to the evaluating authority for the review and authorisation, under Directive 91/414/EC (1), of endosulfan, the active substance of their plant protection product. They also asked to be allowed to address and respond to issues raised by the evaluators during the last stages of the review without any prior consultation with the applicants. By letter dated 26 November 2004 the Commission replied that its services were in the process of preparing a legislative proposal concerning the non-inclusion of endosulfan in Annex I of Directive 91/414. This will result in a ban on the use of this substance.

In support of its application the applicants contend that by failing to review all pertinent and state-of-the-art data submitted by the applicants the Commission violated Articles 95 (3) and 152 (1) EC. They further claim that by failing to act on the applicants request the Commission violated the principle of sound administration enshrined in Article 211 EC as well as their rights of defence, the right to a fair hearing, the duty to provide a statement of reasons and the principle of equal treatment.

The applicants further consider that the Commission's failure to review all the data they submitted neither achieves the desired objective of assessing the safety of plant protection products nor constitutes the least restrictive means to achieve such objectives, since the resulting decision not to include endosulfan in Annex I would cause it to be withdrawn from the EU market with irreparable commercial consequences for the applicants. On this basis the applicants consider the Commission violated the principles of proportionality, of legitimate expectations and of legal certainty. Finally, the applicants submit that by failing to act the Commission encroaches upon their right to conduct business activities and interferes with their right of property.

(1) Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market, OJ L 230, p. 1.

16.4.2005

Official Journal of the European Union

C 93/32

Action brought on 31 January 2005 by Coats Holdings Limited and J & P Coats Limited against the Commission of the European Communities

(Case T-36/05)

(2005/C 93/62)

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 31 January 2005 by Coats Holdings Limited, established in Uxbridge (United Kingdom) and J & P Coats Limited established in Uxbridge (United Kingdom), represented by W. Sibree and C. Jeffs, Solicitors.

The applicants claim that the Court should:

—	declare void and annul the Commission's Decision of 26 October 2004 in Case COMP/F-1/38.338/PO - Needles Doc. C(2004) 4221-final);

—	in the alternative, annul such parts of the decision as the Court finds that the Commission has failed to prove or are vitiated by manifest error or inadequate reasoning;

—	annul or reduce the fine imposed on the applicants.

—	order the Commission to bear its own costs and those incurred by the applicants.

Pleas in law and main arguments

In the contested decision the Commission found that during the period extending from 10 September 1994 to 31 December 1999, the applicants, among other undertakings, had infringed Article 81(1) EC by engaging in concerted practices and entering into a series of agreements which amounted to a tripartite agreement having the effect and object of (i) sharing the European hard haberdashery market, a fact which amounts to product market sharing between the hand sewing and special needles market with the wider markets for needles and with other hard haberdashery markets, and (ii) partitioning the European market for needles, a fact which amounts to geographic market sharing in the needles market.

In support of their application the applicants invoke first of all a series of manifest errors of assessment on the part of the Commission. The applicants do not contest the Commission's findings in relation to the existence of a cartel between the other undertakings mentioned in the contested decision. However, the applicants claim that the Commission's finding that the applicants had also participated in the same cartel is based on speculation, unjustified inference, a large number of simple factual errors and a series of strained interpretations of events. The applicants consider that the Commission's errors are inevitable since it conducted a defective investigation during which it failed to address any pertinent questions to the applicants about the meetings and agreements in question and has failed to appreciate the commercial context in which the applicants operated and which led them to enter into entirely legitimate agreements for the sale of a business and the subsequent supply of needles.

The applicants further claim that even if the Court were to uphold all or part of the alleged infringement the fine should be reduced substantially. According to the applicants the Commission imposed the same fine on the Applicants as that imposed on another participant, despite the fact that even in the Commission' s version of events the applicants played only a minor role compared to the other undertakings. The applicants also considers that the fine is grossly disproportionate to their turnover in the needles market, the only market where their participation could have had any impact, and in this sense grossly disproportionate to any potential economic benefit to themselves or harm to consumers.

16.4.2005

Official Journal of the European Union

C 93/33

Action brought on 28 January 2005 by Ritec International Limited against the Commission of the European Communities

(Case T-40/05)

(2005/C 93/63)

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 28 January 2005 by Ritec International Limited, established in Enfield (United Kingdom), represented by P.H.L.M. Kuypers and M.J. Osse, lawyers with an address for service in Luxembourg.

The applicant claims that the Court should:

—	declare that the applicant does not require to obtain an exemption under Article 5(7) Regulation 2037/2000/EC for its particular use of HCFC-141b in the product ‘ClearShield’;

—

in the alternative, order the Commission to take as soon as possible a new decision in accordance with the ruling of the Court, should the Court declare that the applicant is required to obtain an exemption under Article 5(7) Regulation 2037/2000 for its particular use of HCFC-141b in the product ‘ClearShield’;

—	declare that the applicant has sufficiently demonstrated that for its particular use of HCFC-141b in the product ‘ClearShield’ no technically and economically feasible alternative substance or technology is available nor can be used in the sense of Article 5(7) Regulation 2037/2000;

—	order the Commission to pay all the costs in these proceedings.

Pleas in law and main arguments

Article 5(7) of Regulation 2037/2000/EC (1) allows the Commission, following a request by a competent authority of a Member State, to authorise a time-limited exemption allowing the use and placing on the market of hydrochlorofluorocarbons, in cases where it is demonstrated that, for a particular use, technically and economically feasible alternative substances or technologies are not available or cannot be used. The competent authority of the United Kingdom filed such a request to obtain, for the applicant, an exemption for its particular use of HCFC-141b in its product ‘ClearShield’, a glass protection product. On 23 November 2004 the Commission rejected this application.

The applicant considers that the Commission misunderstood the way in which the applicant uses HCFC-141b and further contests the Commission's assertions that products similar to non-flammable ‘ClearShield’ are marketed, that the applicant was planning to release the flammable ‘ClearShield’ or a spray booth in 2005, that flammable glass protection products can be rendered safe for the applicator when the flammable product is applied in a spray booth, and that it has had sufficient time to replace the use of HCFC-141b with alternatives. It further contends that the contested decision fails to take into account that the applicant has found an alternative to the use of HCFC-141b. At the same time the applicant challenges the Commission's finding that several non-HCFC alternatives are available but not yet implemented due to flammability concerns or that they are used by other companies within the EU market. The applicant submits that it has found only one alternative which is not commercially available.

The applicant further challenges the Commission's findings that use of HCFC-141b had already been banned under Regulation 3093/1994 (2) and that an exemption under Article 5 (7) of Regulation 2037/2000 was necessary for the applicant's continued use of that substance. According to the applicant its particular use of HCFC-141b is not covered by regulation 2037/2000 or, at the very least, will be prohibited only after 2015.

Finally, the applicant alleges that the Commission's decision infringes Article 253 EC by failing to state the reasons on which it is based.

(1) Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer, OJ L 244 p. 1.

(2) Council Regulation (EC) No 3093/94 of 15 December 1994 on substances that deplete the ozone layer, OJ L 333 p. 1.

16.4.2005

Official Journal of the European Union

C 93/33

Action brought on 28 January 2005 by Dimon Incorporated against the Commission of the European Communities

(Case T-41/05)

(2005/C 93/64)

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 28 January 2005 by Dimon Incorporated, established in Danville, Virginia (USA), represented by L.Bergkamp, H. Cogels and J. Dhont, lawyers.

The applicant claims that the Court should:

—	declare Articles 1, 3 and 5 of the contested decision null and void to the extent that they refer to Dimon Inc.;

—	in second order, reduce the amount of the fine imposed on Agroexpansion S.A. and on a joint and severally basis to Dimon Inc.;

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

Pleas in law and main arguments

The applicant contests the decision of the Commission of 20 October 2004 relating to a proceeding under Article 81(1) EC (Case COMP/C.38.238/B.2 - Raw tobacco Spain). The applicant claims that it is not the correct addressee of the decision.

In support of its application, the applicant invokes an infringement of Article 81(1) EC, Article 23(2) of Regulation No 1/2003 (1) and of the principle of proportionality. According to the applicant, the Commission made a manifest error in finding that the applicant exercised a decisive influence over Agroexpansion during the infringement period and has therefore incorrectly addressed the decision to the applicant and has exceeded the maximum limit for the amount of the fine that can be imposed on Agroexpansion, since the Commission has taken into consideration the Dimon's group turnover for calculating the maximum ceiling of the fine.

The applicant furthermore submits a violation of the principle of proportionality and liability to the extent that the applicant has been held liable for a single and complex long term cartel agreement carried out by Agroexpansion of which the applicant was not informed.

The applicant also submits a violation of the principle of proportionality and liability and of Article 23(2) of Regulation No 1/2003. According to the applicant, it should not have been held liable for the infringements that occurred before Agroexpansion became part of the Dimon group.

Finally, the applicant submits a violation of the principle of legitimate expectations in the application of a mitigating factor, pursuant to Section 3 of the Commission's Guidelines of 1998 (2), following the early termination of the infringement as soon as the Commission began the investigation.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the ruleson competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1)

(2) Guidelines on the method of setting fines imposed pursuant to Article 15 (2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ C 9, p. 3)

16.4.2005

Official Journal of the European Union

C 93/34

Action brought on 31 January 2005 by Rhiannon Williams against the Commission of the European Communities

(Case T-42/05)

(2005/C 93/65)

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 31 January 2005 by Rhiannon Williams, residing in Brussels (Belgium), represented by S. Crosby and C. Bryant Solicitors.

The applicant claims that the Court should:

—	annul the decision of the Commission of 19 November 2004 to refuse to give access to the documents which, although not identified in the contested decision, must be presumed to exist;

—	annul the decision of the Commission of 19 November 2004 to refuse to give access to all or any of documents 9, 16, 17, 27, 29, 32, 33, 34 and 46, as identified in the contested decision;

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

Pleas in law and main arguments

The applicant is a doctoral research fellow and is carrying out a project on the impact of globalisation on Community environment and development cooperation law and policy. For this, the applicant has asked for access to documents in order to review the background to recent legislation about genetically modified organisms (GMO). Following the request of the applicant, access to only part of the documents was granted.

In support of her application, the applicant submits an infringement of Article 8 of Regulation No 1049/2001 (1) and a failure to state reasons in accordance with Article 253 EC. According to the applicant, the Commission has given an incomplete reply to the request for access and did not identify all the documents included within its scope. The applicant claims that other documents exist, for which no reasons for refusal of access have been given and no exceptions have been invoked.

The applicant furthermore submits that the Commission erred in law and misapplied the exception under the second paragraph of Article 4(3) and the third indent of Article 4(1)(a) of Regulation No 1049/2001. The applicant also submits that the Commission failed to state reasons and erred in considering that disclosure would seriously undermine the decision making process, that there is no overriding public interest in disclosure of the documents and that the documents in question would weaken the Commission's position before the WTO panel on the de facto moratorium on the approval and marketing of biotech products.

The applicant also submits an infringement of the principle of proportionality and a failure to state reasons in not considering partial access to the documents.

(1) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, p. 43).

16.4.2005

Official Journal of the European Union

C 93/35

Action brought on 31 January 2005 by Micronas GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-45/05)

(2005/C 93/66)

Language of the case: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 31 January 2005 by Micronas GmbH, Freiburg i.Br., Germany, represented by G. Herr, lawyer.

The applicant claims that the Court should:

—	annul the decision of the Second Board of Appeal of 12 November 2004 (Decision R 366/2004-2-3D-Panorama) refusing to register the Community trade mark ‘3D-Panorama’ for Class 9 ‘electronic circuits, integrated circuits, and in particular semiconductor chips’;

—	order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

Applicant for Community trade mark:	Micronas GmbH.
Community trade mark sought:	The word mark ‘3D Panorama’ for Class 9 goods (consumer electronics, in particular TV sets, video recorders, radios, electronic circuits, integrated circuits, and in particular semiconductor chips; software) — Registration No 2871218.
Decision of the examiner contested before the Board of Appeal:	Refusal to register the mark for all of the goods applied for.
Decision of the Board of Appeal:	Dismissal of the appeal.
Pleas in law:	The contested decision infringes Article 7(1)(b) and (c) of Regulation (EC) No 40/94, because as far as ‘electronic circuits, integrated circuits, and in particular semiconductor chips’ are concerned, the word combination 3D-Panorama neither consists exclusively of signs or indications nor is devoid of distinctive character.

16.4.2005

Official Journal of the European Union

C 93/36

Action brought on 31 January 2005 by Pila Ange Serrano and Others against European Parliament

(Case T-47/05)

(2005/C 93/67)

Language of the case: French

An action against the European Parliament was brought before the Court of First Instance of the European Communities on 31 January 2005 by Pilar Ange Serrano, residing in Luxembourg, Jean-Marie Bras, residing in Luxembourg, Dominiek Decoutere, residing in Wolwelange (Luxembourg), Armin Hau, residing in Luxembourg, Adolfo Orcajo Teresa, residing in Brussels, and Francisco Javier Solana Ramos, residing in Woluwe-Saint-Lambert (Belgium, represented by Eric Boigelot, lawyer.

The applicants claim that the Court should:

—	annul the decision containing the applicants' new classification in grade, which was communicated to them, respectively, by an undated and unsigned letter from the Director General for Personnel;

—	annul any act consecutive to and/or relating to that decision, even one adopted subsequent to the present action;

—	order the European Parliament to pay damages, evaluated on an equitable basis at EUR 60 000 for each applicant, subject to any increase or reduction during the proceedings;

—	in any event, order the defendant to pay the costs.

Pleas in law and main arguments

The applicants are all officials of the European Parliament who were successful in a competition for a change in category (from category D to category C, or from category C to category B) after the entry into force, on 1 May 2004, of the reform of the Staff Regulations. They claim that their reclassification in grade according to the new Staff Regulations is less favourable to them than that which they would have obtained had they not been successful in the competitions in question.

In support of their application, the applicants rely, first of all, on an objection of illegality concerning Regulation No 723/2004 (1) amending the Staff Regulations, based on alleged breach of the obligation to state reasons, the principles of legal certainty, legitimate expectations, proportionality and equal treatment. They also claim that, in adopting the contested decisions, the European Parliament failed to comply with either its duty to have regard for the welfare of its officials or the principle of good administration.

(1) Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (OJ L 124 of 27.04.2004, p. 1).

16.4.2005

Official Journal of the European Union

C 93/36

Action brought on 28 January 2005 by Yves Franchet and Daniel Byk against the Commission of the European Communities

(Case C-48/05)

(2005/C 93/68)

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 28 January 2005 by Yves Franchet, residing in Nice (France), and Daniel Byk, residing in Luxembourg, represented by Georges Vandersanden and Laure Levi, lawyers.

The applicants claim that the Court should:

—	order the Commission, on account of the errors committed, to make good the pecuniary and non-pecuniary harm sustained by the applicants, provisionally evaluated at EUR 1 million;

—	order the Commission to pay the entire costs.

Pleas in law and main arguments

The applicants were accused by OLAF of criminal offences relating to the administration of certain files concerning Eurostat. The applicants maintain that the measures subsequently taken by the Commission contain procedural errors and fail to respect their fundamental rights.

In the applicants' submission, OLAF erred in forwarding the file relating to the accusations to the French and Luxembourg judicial authorities without informing the applicants or the Commission that it was doing so, breached the principle of confidentiality, disregarded the presumption of innocence, the principle of good administration and Article 9 of Regulation No 1073/1999, (1) the right to be heard and the obligation to state reasons. The applicants further rely on OLAF's opposition to access to certain documents and, last, claim that OLAF failed to deal with the cases within a reasonable time and infringed Articles 6 and 11 of Regulation No 1973/1999.

The applicants also claim that the Commission erred in not ensuring confidentiality and in failing to have regard for fundamental rights, in particular the rights of defence and the principle of the presumption of innocence. The applicants further criticise the Commission for having adopted an adversarial approach and for having duplicated the proceedings, for having breached the principle of good administration and, last, for having refused access to the OLAF documents in its possession.

The applicants claim that those errors caused them non-pecuniary and pecuniary harm.

(1) Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (OJ L 136, p. 1).

16.4.2005

Official Journal of the European Union

C 93/37

Action brought on 31 January 2005 by Rijn Schelde Mondia France against the Commission of the European Communities

(Case T-55/05)

(2005/C 93/69)

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 31 January 2005 by Rijn Schelde Mondia France, having its registered office in Rouen (France), represented by François Citron, lawyer.

The applicant claims that the Court should:

—	regard the letter of 7 October 2004 sent by the European Commission to the Directorate General of Customs in file REM 2201 as constitutive of a decision of the European Commission, which adversely affects Rijn Schelde Mondia France and annul it accordingly;

—	order the Commission to pay the costs.

Pleas in law and main arguments

The applicant in the present case objects to the decision allegedly contained in a letter of the Commission dated 7 October 2004 which was sent to the French Directorate General of Customs.

In this respect, it is to be borne in mind that the applicant company requested the French customs authorities by letter of 31 October 2000 to agree to remit the customs duties which had been notified to it by the Directorate General of Customs of Rouen and Le Havre, in respect of a total amount of EUR 962 058,64. Although the French authorities considered themselves competent to deal with the application for remission of duties, they nevertheless referred the file to the Commission so that the Commission could rule on ‘whether the negligence found was manifest in nature or not’.

By the contested decision the Commission returned the file to the French customs authorities ‘to be dealt with by your department’. Nonetheless, the Commission did point out to the French authorities that it considered that the applicant was guilty of manifest negligence and recommended further that the applicant be refused the benefit of remission of duties.

In support of its claims, the applicant asserts that:

—	the Commission acted ultra vires in the present case since although it considered itself not to have the power to deal with the application for remission of duties, it nevertheless took a view as to whether the negligence alleged was manifest in nature or not;

—	the Commission did not make its decision within the nine-month time-limit laid down in the second paragraph of Article 907 of the regulation implementing the Community Customs Code;

—	the Commission failed to observe the duty to give reasons;

—

the Commission misused its powers in the present case in so far as it gave its decision as regards its lack of power three years after the file had been sent to it by the French authorities, although it had not known of the argument relating to lack of power initially raised by the applicant itself before the French customs authorities.

Lastly, the applicant alleges that the Commission made a manifest error in its assessment in this case of the constituent elements of manifest negligence.

16.4.2005

Official Journal of the European Union

C 93/38

Action brought on 3 February 2005 by Isabel Clara Centeno Mediavilla and Others against Commission of the European Communities

(Case T-58/05)

(2005/C 93/70)

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 3 February 2004 by Isabel Clara Centeno Mediavilla, residing in Seville (Spain), and 16 others, represented by Georges Vandersanden, Laure Levi and Aurore Finchelstein, lawyers.

The applicant claims that the Court should:

—	annul the classification in grade granted to the applicants in their recruitment decisions, in so far as that classification is based on Article 12(3) of Annex XIII to the new Staff Regulations;

—

in consequence, reconstitute the applicants' careers (including recognition of their experience in grade thus amended, their rights to promotion and their pension entitlement) on the basis of the grade in which they should have been appointed as stated in the competition notice following which they were placed on the reserve recruitment list, either in the grade appearing in that competition notice, or, corresponding to its equivalent according to the classification in the new Staff Regulations (and the appropriate step in accordance with the rules applicable before 1 May 2004), on the basis of the decision appointing them;

—

award the applicants default interest, based on the rate fixed by the European Central Bank, on all the sums corresponding to the difference between the salary corresponding to their classification in the recruitment decision and the classification to which they should have been entitled up to the date of the decision properly classifying them in grade;

—	order the Commission to pay the entire costs.

Pleas in law and main arguments

The applicants took part in competitions for recruitment as officials within the Commission and were place on the reserve recruitment list before 1 May 2004, the date on which Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (1) entered into force. The applicants were actually appointed after 1 May 2004 and were classified in grade and in step according to the transitional provisions of the new Staff Regulations, as set out in Article 12 of Annex XIII. The applicants state, first, that as a result they were classified in a lower grade than that set out in the competition notices and, second, that the new grades attributed to them no longer correspond to the former category A or B grades in which they were recruited.

In support of their application, the applicants put forward, first of all, an objection of illegality in respect of Article 12 of Annex XIII. The applicants maintain that Article 12 of Annex XII to the new Staff Regulations fails to observe the principle of equal treatment and non-discrimination in that candidates who were successful in the same competition were treated differently as regards their classification in grade, depending on whether they were recruited before 1 May 2004 or after that date.

They further claim that Article 12 of Annex XIII breaches Article 31 of the new Staff Regulations. In their submission, the grade that must be conferred on an official who has been recruited is, in accordance with Article 31, the grade indicated in the notice of the competition to which he was admitted. The grade conferred on the applicants upon their recruitment is different from the grade mentioned in the competition notice.

The applicants also contend that article 12 of Annex XIII breaches Article 5 of the new Staff Regulations, the principle of equal treatment and non-discrimination and the principle of equivalence of post and grade. They claim that their posts were not reclassified according to the nature and level of the duties carried out from the aspect of each typical post and that, contrary to Article 5(5) of the new Staff Regulations, the applicants did not enjoy the same conditions of recruitment and career progression by comparison with the successful candidates in the same competition who were appointed before 1 May 2004.

They also contend that Article 12 of Annex XIII infringes the principle lf legal certainty and the principle of non-retroactivity, the applicants' acquired rights and their legitimate expectation. They maintain that their rights in respect of their classification in grade came into existence when they appeared on the reserve recruitment list and that it is on the basis of that information that they may be assured that if they are appointed they will receive the classification in grade set out in the competition notice.

The applicants claim, last, that, contrary to Article 10 of the new Staff Regulations, the Staff Committee was not consulted a second time when the Commission altered its initial proposal to amend the Staff Regulations and introduced the text the legality of which is disputed.

In support of their action, the applicants also claim that there has been a breach of the principle of good administration, of the principle that an institution is to have regard for the welfare of its officials, of the principle of transparency, of the principle of legitimate expectations, of the principle of good faith, of the principle of equal treatment and non-discrimination and of the principle of equivalence of post and grade.

(1) OJ L 124, p. 1.

16.4.2005

Official Journal of the European Union

C 93/39

Action brought on 2 February 2005 by Union française de l'express (UFEX) and Others against the Commission of the European Communities

(Case T-60/05)

(2005/C 93/71)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 2 February 2005 by Union française de l'express (UFEX), having its registered office at Roissy Charles de Gaulle (France), DHL International SA, having its registered office at Roissy Charles de Gaulle (France), Federal Express International (France) SNC, having its registered office at Gennevilliers (France), and CRIE, having its registered office at Asnières (France), represented by Eric Morgan de Rivery and Jacques Derenne, lawyers.

The applicants claim that the Court should:

—	annul Commission decision SG-Greffe (2004) D/205294 of 19 November 2004;

—	order the Commission to pay the costs.

Pleas in law and main arguments

The present application seeks annulment of the decision rejecting the complaint lodged in December 1990 by UFEX, then called SFEI, against la Poste as a result of cross-subsidies allegedly amounting to an abuse of a dominant position to the benefit of Société Française de Messagerie Internationale (SFMI). That decision is the consequence of a request to reopen the procedure before the Commission following annulment by the Community Court of the Commission's decision of 30 December 1994, which rejected the initial complaint. (1)

The main issue raised in the present case is still the same as that which was the subject of the judgments of the Court of Justice and the Court of First Instance cited above, namely whether the defendant complied with its obligations in the context of the examination of the complaint. The applicants submit that, in rejecting the complaint on the ground of an alleged lack of Community interest, the contested decision infringes the legal rules relating to assessment of Community interest, is vitiated by a contradiction in the grounds and contains a number of errors of law, as regards the rejection of that part of the complaint based on Articles 86 EC, 82 EC, 3(g) EC and 10 EC.

Specifically, the applicants claim in particular that the Commission made errors in assessing the elements which necessarily make up the definition of Community interest, since, in order to give reasons for its finding that there is no Community interest, it must assess the seriousness and duration of the infringements alleged in the complaint. Consequently, it is not sufficient to establish whether anti-competitive effects still exist and, in the absence of such effects, that there is no Community interest in continuing the examination of the complaint.

As regards the duration of the infringement, the applicants criticise the fact that the Commission merely examined whether the incidental effects of the alleged infringements still existed (development of market shares, competitors leaving the market, price sensitivity of demand, absence of persistent effects in terms of price, etc), without paying attention to the main effect of a structural nature, namely having placed SFMI-Chronopost in a position of market leader and having maintained it there.

As far as reasoning is concerned, it is pointed out that, in the contested decision, the Commission asserts, on the one hand, that it is perfectly able to check the level to which la Poste covers costs, which in the light of both Article 82 EC and Article 87 EC would be the only calculation making it possible to ascertain the existence of cross-subsidies, and, on the other hand, that the reason for not checking the level to which la Poste covers costs in the light of Article 82 EC is that this would have amounted to a duplication of the work which it is required to undertake itself for the State aid part of the complaint.

The applicants also contest the Commission's assertion that the benefits granted to Chronopost in terms of customs clearance and franking come within the scope of the action of the French State in the field of its public authority and do not fall within the scope of Article 82 EC in conjunction with Article 86 EC.

(1) Case C-119/97 P UFEX and Others v Commission [1999] ECR I-1341, and Case T-77/95 REV UFEX and Others v Commission [2000] ECR II-2167.

16.4.2005

Official Journal of the European Union

C 93/40

Action brought on 18 February 2005 by Dario Scotto against the Commission of the European Communities

(Case T-76/05)

(2005/C 93/72)

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 February 2005 by Dario Scotto, represented by Prof. Massimo Condinanzi, lawyer.

The applicant claims that the Court should:

—	annul the decision of the Commission of 27 October 2004 which rejected complaint No R/616/04 lodged by the applicant of 12 July 2004 and accordingly annul Career Development Review No 23330;

—	order the Commission to pay the costs of the case.

Pleas in law and main arguments

The applicant in this case challenges the assessment relating to his Career Development Review (CDR) for the period 1 January 2003 to 31 August 2003.

In support of his claims, the applicant pleads:

—	Infringement of Article 43 of the Staff Regulations and the relevant implementing provisions.

—	Infringement of the procedure for drawing up the CDR on account of incomplete assessment of the reference period.

—	The existence of manifest errors of fact in evaluating the applicant's activities with regard to the individual objectives assigned to him.

16.4.2005

Official Journal of the European Union

C 93/40

Action brought on 19 February 2005 by Andrea Balduini against the Commission of the European Communities

(Case T-77/05)

(2005/C 93/73)

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 19 February 2005 by Andrea Balduini, represented by Gabriele Balduini, lawyer.

The applicant claims that the Court should:

annul Decision ADMIN. B.2-PC/amd-D (2004)27617 of the appointing authority of 12 November 2004, notified by registered letter with advice of receipt dated 15 November 2004, received on 22 November 2004, and disregard questions 11 and 36 of Test A (specialised knowledge of the field) in competition EPSO/A/11/03, or only one of those questions;

accordingly, annul the decision of the selection board for competition EPSO/A/11/03, of which the applicant was informed by communication EPSO/5000LM-EN of 14 May 2004, and determine and declare that the applicant has obtained one of the 450 best marks and, therefore, admit him to the next stages of competition EPSO/A/11/03;

3.	in any event, order the Commission to pay the costs.

Pleas in law and main arguments:

The applicant in this case participated in open competition EPSO/A/11/03, which provided, in the first stage, for three preselection tests to be held.

By communication of 14 May 2004, the selection board informed the applicant that the overall mark he had obtained in the preselection tests, 44.726 points, was not sufficient for him to be included among the 450 highest-scoring candidates and therefore he had not been admitted to the next stage.

By a subsequent communication, the selection board explained to all the candidates that the marks in the preselection tests had been determined after the selection board had disregarded five questions in those tests (question 17 in Test A, questions 4 and 20 in Test B and questions 45 and 52 in Test C).

The requests to the selection board for amendment, and to EPSO for reconsideration, were rejected. According to those two requests, another two questions in Test A (questions 11 and 36) should be disregarded, inasmuch as they were completely incorrect, illogical and incomprehensible, so that the applicant would become one of the 450 best candidates and be admitted to the next stage. Both requests were rejected.

In support of his claims, the applicant pleads infringement of the principle of equal treatment laid down in Article 5(3) of the Staff Regulations.

16.4.2005

Official Journal of the European Union

C 93/41

Action brought on 17 February 2005 by the Italian Republic against the Commission of the European Communities

(Case T-82/05)

(2005/C 93/74)

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 17 February 2005 by the Italian Republic, represented by Antonio Cingolo, Avvocato dello Stato.

The applicant claims that the Court should:

—

annul the memorandum of 8 December 2004, D(2004) 12075 concerning: payments by the Commission differing from the sum requested in respect of Programme P.E.P. Campania, request for payment number 2004 2245, in so far as the European Commission – Directorate-General for Regional Policy – intervention in Cyprus, Greece, Italy, Malta, Hungary and the Netherlands, has communicated the following decision: ‘as stated in letter No 0037474 of 25 November of the Ministry of the Economy, the sum of EUR 1 994 835 has not been accepted as valid in relation to measure 4.2, so far as it relates to advances on schemes of aid granted after 19 February 2003 or the notice of which was closed after that date, which have not been used by the final recipient in order to pay actual expenses’;

—	annul all connected and contingent acts;

—	order the Commission to pay the costs.

Pleas in law and main arguments

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

(1) OJEU C 262 of 23 October 2004, p. 55.

		ISSN 1725-2423
Official Journal of the European Union		C 93

English edition	Information and Notices	Volume 48 16 April 2005

Notice No	Contents	page
	I Information
	Court of Justice
	COURT OF JUSTICE
2005/C 093/1	Judgment of the Court (Grand Chamber) of 22 February 2005 in Case C-141/02 P: Commission of the European Communities v T-Mobile Austria GmbH (Appeal — Article 90(3) of the EC Treaty (now Article 86(3) EC) — Amount of the fees imposed by the Republic of Austria on operators of GSM networks — Partial rejection of the complaint — Admissibility)	1

2005/C 093/2	Judgment of the Court (Second Chamber) of 17 February 2005 in Joined Cases C-453/02 and C-462/02: (references for a preliminary ruling from the Bundesfinanzhof) Finanzamt Gladbeck v Edith Linneweber and Finanzamt Herne-West v Savvas Akritidis (Sixth VAT Directive — Exemption for games of chance — Determination of the conditions and limitations to which the exemption is subject — Liability of games organised outside public casinos — Respect for the principle of fiscal neutrality — Article 13B( f) — Direct effect)	1

2005/C 093/3	Judgment of the Court (Third Chamber) of 17 February 2005 in Case C-134/03: (reference for a preliminary ruling from the Giudice di pace di Genova-Voltri) Viacom Outdoor Srl v Giotto Immobilier SARL (Freedom to provide services — Competition — Bill-posting services — Domestic legislation imposing a municipal tax on advertising — Supply by municipalities of a public bill-posting service — Power of the municipalities to regulate the supply of bill-posting services — Internal taxation not discriminatory)	2

2005/C 093/4	Judgment of the Court (Fifth Chamber) of 24 February 2005 in Case C-320/04 Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2000/43/EC — Failure to transpose within the prescribed period)	2

2005/C 093/5	Judgment of the Court (Fifth Chamber) of 24 February 2005 in Case C-327/04: Commission of the European Communities v Republic of Finland (Failure of a Member State to fulfil obligations — Directive 2000/43/EC — Failure to transpose within the prescribed period)	3

2005/C 093/6	Order of the Court (Second Chamber) of 1 December 2004 in Case C-498/01 P: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) v Zapf Creation AG (Appeal — Community trade mark — Regulation (EC) No 40/94 — Absolute grounds for refusal of registration — Article 7(1)(b) and (c) — New Born Baby — No need to give judgment)	3

2005/C 093/7	Order of the Court (Fifth Chamber) of 16 December 2004 in Case C-222/03 P Associazione Produttori Olivicoli Laziali (APOL) Associazione Italiana Produttori Olivicoli (AIPO) v Commission of the European Communities (Appeal — EAGGF — Improvement of the conditions under which agricultural products are processed and marketed — Plan to build a centre for the storage, packaging and marketing of olive oil — Principle of proportionality — Force majeure — Rights of the defence)	4

2005/C 093/8	Case C-12/05 P: Appeal brought on 18 January 2005 by H. Meister against the judgment delivered on 28 October 2004 by the Court of First Instance of the European Communities (Third Chamber) in Case T-76/03 between H. Meister and Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)	4

2005/C 093/9	Case C-18/05: Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Napoli by order of that court of 15 July 2004 in Salus S.p.A v Agenzia Entrate Ufficio Napoli 4	5

2005/C 093/0	Case C-19/05: Action brought on 20 January 2005 by the Commission of the European Communities against the Kingdom of Denmark	5

2005/C 093/1	Case C-20/05: Reference for a preliminary ruling from the Tribunale Civile e Penale di Forlì by order of that court of 14 December 2004 in the criminal proceedings against K.J.W. Schwibbert	6

2005/C 093/2	Case C-28/05: Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Administrative Court for Trade and Industry) by order of that court of 18 January 2005 in G.J. Dokter, Maatschap Van den Top and W. Boekhout v Minister van Landbouw, Natuur en Voedselkwaliteit	6

2005/C 093/3	Case C-34/05: Reference for a preliminary ruling from the College van Beroep voor het Bedrijfsleven by decision of that court of 26 January 2005 in the case of Maatschap J. and G.P. and A.C. Schouten v Minister van Landbouw, Natuur en Voedselkwaliteit	7

2005/C 093/4	Case C-35/05: Reference for a preliminary ruling from the Corte Suprema di Cassazione by order of that court of 23 June 2004 and 10 November 2004, received at the Court Registry on 31 January 2005, in the case of Reemtsma Cigarettenfabriken Gmbh against Ministero delle Finanze	8

2005/C 093/5	Case C-40/05: Reference for a preliminary ruling from the Överklagandenämnden för högskolan by decision of that court of 1 February 2005 in Kaj Lyyski v Umeå universitet	8

2005/C 093/6	Case C-41/05: Reference for a preliminary ruling from the Tribunal de première instance de Liège (Belgium) by judgment of that court of 24 January 2005 in Air Liquide Industries Belgium SA v Province de Liège	9

2005/C 093/7	Case C-42/05: Reference for a preliminary ruling from the Cour de cassation de Belgique (Court of Cassation, Belgium) (First Chamber), by order of that court of 20 January 2005, in the case of the Belgian State v Ring Occasions and Fortis Banque	9

2005/C 093/8	Case C-45/05: Reference for a preliminary ruling from the College van Beroep voor het Bedrijsleven by order of that court of 2 February 2005 in Maatschap Schonewille-Prins v Minister van Landbouw, Natuur en Voedselkwaliteit	10

2005/C 093/9	Case C-46/05: Action brought on 7 February 2005 by the Commission of the European Communities against Ireland	10

2005/C 093/0	Case C-50/05: Reference for a preliminary ruling from the Korkein Hallinto-oikeus by decision of that court of 4 February 2005 in the case of Maija Terttu Inkeri Nikula	11

2005/C 093/1	Case C-54/05: Action brought on 9 February 2005 by the Commission of the European Communities against the Republic of Finland	11

2005/C 093/2	Case C-56/05: Action brought on 9 February 2005 by the Commission of the European Communities against the Hellenic Republic	12

2005/C 093/3	Case C-58/05: Action brought on 10 February 2005 by the Commission of the European Communities against the Kingdom of Sweden	13

2005/C 093/4	Case C-60/05: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia by order of that court of 14 December 2004 in WWF Italia and Others v Regione di Lombardia and with the intervention of the Associazione migratoristi italiani	13

2005/C 093/5	Case C-66/05: Action brought on 14 February 2005 by the Commission of the European Communities against the Kingdom of the Netherlands	14

2005/C 093/6	Case C-72/05: Reference for a preliminary ruling from the Finanzgericht München by order of that court of 1 February 2005 in Household of Jörg and Stefanie Wollny v Finanzgericht Landshut	14

2005/C 093/7	Case C-76/05: Reference for a preliminary ruling from the Finanzgericht Köln by order of that court of 27 January 2005 in Herbert Schwarz and Marga Gootjes-Schwarz v Finanzamt Bergisch Gladbach	15

2005/C 093/8	Case C-78/05: Reference for a preliminary ruling from the Tribunale di Livorno by order of that court of 22 December 2004 in Gentilini unberto v Dal Colle Industria Dolciaria S.p.A.	15

2005/C 093/9	Case C-79/05: Action brought on 17 February 2005 by the Commission of the European Communities against the Italian Republic	16

2005/C 093/0	Case C-81/05: Reference for a preliminary ruling from the Tribunal Superior de Justicia de Castilla y León, Sala de lo Social, by order of that court of 28 January 2005 in Anacleto Cordero Alonso v Fondo de Garantía Salarial	16

2005/C 093/1	Case C-82/05: Action brought on 17 February 2005 by the Commission of the European Communities against the Hellenic Republic	17

2005/C 093/2	Case C-84/05: Action brought on 18 February 2005 by the Commission of the European Communities against the Italian Republic	18

2005/C 093/3	Case C-85/05: Action brought on 18 February 2005 by the Commission of the European Communities against the Italian Republic	18

2005/C 093/4	Case C-86/05: Action brought on 18 February 2005 by the Commission of the European Communities against the Italian Republic	19

2005/C 093/5	Case C-87/05: Action brought on 18 February 2005 by the Commission of the European Communities against the Italian Republic	19

2005/C 093/6	Case C-88/05: Action brought on 18 February 2005 by the Commission of the European Communities against the Republic of Finland	19

2005/C 093/7	Case C-94/05: Reference for a preliminary ruling from the Bundesverwaltungsgericht by judgment of that court of 9 December 2004 in Emsland-Stärke GmbH v Bezirksregierung Weser-Ems	20

2005/C 093/8	Case C-95/05: Action brought on 21 February 2005 by the Commission of the European Communities against the Hellenic Republic	21

2005/C 093/9	Case C-96/05: Action brought on 21 February 2005 by the Commission of the European Communities against the Hellenic Republic	21

2005/C 093/0	Case C-99/05: Action brought on 24 February 2005 by the Commission of the European Communities against the Republic of Finland	21

2005/C 093/1	Case C-105/05: Action brought on 3 March 2005 by the Commission of the European Communities against the Republic of Finland	22

2005/C 093/2	Case C-107/05: Action brought on 3 March 2005 by the Commission of the European Communities against the Republic of Finland	22

2005/C 093/3	Removal from the register of Case C-165/02	23

2005/C 093/4	Removal from the register of Case C-272/02	23

2005/C 093/5	Removal from the register of Case C-501/03	23

2005/C 093/6	Removal from the register of Case C-100/04	23

	COURT OF FIRST INSTANCE
2005/C 093/7	Judgment of the Court of First Instance of 3 February 2005 in Case T-19/01 Chiquita Brands International, Inc., and Others v Commission of the European Communities (Common organisation of the markets — Bananas — Action for compensation — Regulation No 2362/98 — Agreement establishing the WTO and annexed agreements — Recommendations and rulings of the dispute settlement body of the WTO)	24

2005/C 093/8	Judgment of the Court of First Instance of 3 February 2005 in Case T-139/01 Comafrica SpA and Dole Fresh Fruit Europe Ltd & Co v Commission of the European Communities (Common organisation of the markets — Bananas — Imports from ACP States and third countries — Regulation (EC) No 896/2001 — Regulation (EC) No 1121/2001 — Action for annulment — Admissibility — Person individually concerned — Action for damages)	24

2005/C 093/9	Judgment of the Court of First Instance of 15 February 2005 in Case T-256/01 Norman Pyres v Commission of the European Communities (Officials — Selection procedure for the recruitment of temporary agents — Non-admission to the tests — Age limit — Principle of non-discrimination)	25

2005/C 093/0	Judgment of the Court of First Instance of 15 February 2005 in Case T-169/02 Cervecería Modelo, SA de CV v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Application for a Community figurative mark representing a bottle of beer including the verbal element negra modelo — Earlier national figurative mark Modelo — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)	25

2005/C 093/1	Judgment of the Court of First Instance of 15 February 2005 in Case T-296/02 Lidl Stiftung & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition — Likelihood of confusion — Application for Community word mark LINDENHOF — Earlier word and figurative mark LINDERHOF — Article 8(1)(b) of Regulation (EC) No 40/94)	26

2005/C 093/2	Judgment of the Court of First Instance of 1 February 2005 in Case T-57/03 Société provençale d'achat et de gestion (SPAG) SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community mark — Opposition proceedings — Application for Community word mark HOOLIGAN — Earlier word marks OLLY GAN — Matters of fact or of law outside OHIM's jurisdiction — Admissibility — Likelihood of confusion)	26

2005/C 093/3	Judgment of the Court of First Instance of 3 February 2005 in Case T-137/03 Ornella Mancini v Commission of the European Communities (Officials — Post of medical officer — Amendment to the vacancy notice — Misuse of powers — Composition of the Selection Board — Comparative examination of merits — Manifest error of assessment — Equal treatment for men and women — Action for damages)	27

2005/C 093/4	Judgment of the Court of First Instance of 3 February 2005 in Case T-172/03 Nicole Heurtaux v Commission of the European Communities (Officials — Refusal of promotion — Absence of statement of reasons — Comparative examination of merits — Action for annulment)	27

2005/C 093/5	Judgment of the Court of First Instance of 16 February 2005 in Case T-284/03 Rosalinda Aycinena v the Commission of the European Communities (Officials — Appointment to higher grade in career — Classification in step)	27

2005/C 093/6	Judgment of the Court of First Instance of 16 February 2005 in Case T-354/03 Gemma Reggimenti v European Parliament (Officials — Reimbursement of dependent child's travel expenses — Division if two married officials divorce)	28

2005/C 093/7	Order of the President of the Court of First Instance of 31 January 2005 in Case T-447/04 R Capgemini Nederland BV v Commission of the European Communities (Public contracts for services — Community tendering procedure — Interim proceedings — Prima facie case — Urgency)	28

2005/C 093/8	Case T-496/04: Action brought on 23 December 2004 by NORTRAIL Transport GmbH against the Commission of the European Communities	29

2005/C 093/9	Case T-11/05: Action brought on 18 January 2005 by Wieland Werke AG, Buntmetall Amstetten Ges.m.b.H. and Austria Buntmetall AG against the Commission of the European Communities	29

2005/C 093/0	Case T-31/05: Action brought on 25 January 2005 by Sergio Rossi S.p.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)	30

2005/C 093/1	Case T-34/05: Action brought on 31 January 2005 by Bayer CropScience AG, Makhteshim Agan Holding BV, Alfa Agricultural Supplies S.A. and Aragonesas Agro S.A. against the Commission of the European Communities	31

2005/C 093/2	Case T-36/05: Action brought on 31 January 2005 by Coats Holdings Limited and J & P Coats Limited against the Commission of the European Communities	32

2005/C 093/3	Case T-40/05: Action brought on 28 January 2005 by Ritec International Limited against the Commission of the European Communities	33

2005/C 093/4	Case T-41/05: Action brought on 28 January 2005 by Dimon Incorporated against the Commission of the European Communities	33

2005/C 093/5	Case T-42/05: Action brought on 31 January 2005 by Rhiannon Williams against the Commission of the European Communities	34

2005/C 093/6	Case T-45/05: Action brought on 31 January 2005 by Micronas GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)	35

2005/C 093/7	Case T-47/05: Action brought on 31 January 2005 by Pila Ange Serrano and Others against European Parliament	36

2005/C 093/8	Case C-48/05: Action brought on 28 January 2005 by Yves Franchet and Daniel Byk against the Commission of the European Communities	36

2005/C 093/9	Case T-55/05: Action brought on 31 January 2005 by Rijn Schelde Mondia France against the Commission of the European Communities	37

2005/C 093/0	Case T-58/05: Action brought on 3 February 2005 by Isabel Clara Centeno Mediavilla and Others against Commission of the European Communities	38

2005/C 093/1	Case T-60/05: Action brought on 2 February 2005 by Union française de l'express (UFEX) and Others against the Commission of the European Communities	39

2005/C 093/2	Case T-76/05: Action brought on 18 February 2005 by Dario Scotto against the Commission of the European Communities	40

2005/C 093/3	Case T-77/05: Action brought on 19 February 2005 by Andrea Balduini against the Commission of the European Communities	40

2005/C 093/4	Case T-82/05: Action brought on 17 February 2005 by the Italian Republic against the Commission of the European Communities	41

	III Notices
2005/C 093/5	Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 82, 2.4.2005	42