14.5.2005

Official Journal of the European Union

C 115/1

JUDGMENT OF THE COURT

(Third Chamber)

of 3 March 2005

in Case C-428/02 (Reference for a preliminary ruling from the Vestre Landsret) Fonden Marselisborg Lystbådehavn v Skatteministeriet, and Skatteministeriet v Fonden Marselisborg Lystbådehavn (1)

(Sixth VAT Directive - Article 13B(b) - Exemptions - Leasing of immovable property - Letting of premises and sites for parking vehicles - Mooring berths for boats - Land storage sites for boats)

(2005/C 115/01)

Language of the case: Danish

In Case C-428/02: reference for a preliminary ruling under Article 234 EC from the Vestre Landsret (Denmark), made by decision of 15 November 2002, received at the Court on 26 November 2002, in the proceedings Fonden Marselisborg Lystbådehavn v Skatteministeriet, and Skatteministeriet v Fonden Marselisborg Lystbådehavn — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, A. Borg Barthet, J.-P. Puissochet, J. Malenovský and U. Lõhmus (Rapporteur), Judges; J. Kokott, Advocate General; H. von Holstein, Deputy Registrar, gave a judgment on 3 March 2005, the operative part of which is as follows:

Article 13B(b) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 92/111/EEC of 14 December 1992, must be interpreted as meaning that the concept of letting of immovable property includes the letting of both water-based mooring berths for pleasure boats and land sites for storage of boats on port land.

2.	Article 13B(b)(2) of Sixth Directive 77/388, as amended by Directive 92/111, must be interpreted as meaning that the definition of ‘vehicles’ includes boats.

(1) OJ C 55 of 08.03.2003.

14.5.2005

Official Journal of the European Union

C 115/1

JUDGMENT OF THE COURT

(Second Chamber)

of 10 March 2005

in Case C-22/03 Reference for a preliminary ruling from the Rechtbank te Rotterdam: Optiver BV and Others v Stichting Autoriteit Financiële Markten (1)

(Directive 69/335/EEC - Indirect taxes on the raising of capital - Duty on the gross profits of securities intermediaries)

(2005/C 115/02)

Language of the case: Dutch

In Case C-22/03: reference for a preliminary ruling under Article 234 EC from the Rechtbank te Rotterdam (Netherlands), made by decision of 21 January 2003, received at the Court on 23 January 2003, in the proceedings pending before that court between Optiver BV and Others and Stichting Autoriteit Financiële Markten, successor in title to the Stichting Toezicht Effectenverkeer — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta, R. Schintgen (Rapporteur), P. Kūris and G. Arestis, Judges; D. Ruiz-Jarabo Colomer, Advocate General, M.-F. Contet, Principal Administrator, for the Registrar, gave a judgment on 10 March 2005, the operative part of which is as follows:

Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital is to be interpreted as meaning that it does not preclude the levying on securities intermediaries of a duty, such as that at issue in the main proceedings, on the gross profits from activities related to those securities.

(1) OJ C 70 of 22.03.2003.

14.5.2005

Official Journal of the European Union

C 115/2

JUDGMENT OF THE COURT

(Third Chamber)

of 3 March 2005

in Case C-32/03 (reference for a preliminary ruling from the Højesteret): I/S Fini H v Skatteministeriet (1)

(Sixth VAT Directive - Status of taxable person - Right to deduct - Winding up - Direct and immediate link - Transactions forming part of the economic activity as a whole)

(2005/C 115/03)

Language of the case: Danish

In Case C-32/03: reference for a preliminary ruling under Article 234 EC from the Højesteret (Denmark), made by decision of 22 January 2003, received at the Court on 28 January 2003, in the proceedings I/S Fini H v Skatteministeriet — the Court: (Third Chamber) composed of A. Rosas, President of the Chamber, A. Borg Barthet, J.-P. Puissochet, J. Malenovský and U. Lõhmus (Rapporteur), Judges; F.G. Jacobs, Advocate General, H. von Holstein, Deputy Registrar, for the Registrar, gave a judgment on 3 March 2005, the operative part of which is as follows:

Article 4(1) to (3) of the 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, as amended by Council Directive 95/7/EC of 10 April 1995, is to be interpreted as meaning that a person who has ceased an economic activity but who, because the lease contains a non-termination clause, continues to pay the rent and charges on the premises used for that activity is to be regarded as a taxable person within the meaning of that article and is entitled to deduct the VAT on the amounts thus paid, provided that there is a direct and immediate link between the payments made and the commercial activity and that the absence of any fraudulent or abusive intent has been established.

(1) OJ C 83 of 05.04.2003.

14.5.2005

Official Journal of the European Union

C 115/2

JUDGMENT OF THE COURT

(First Chamber)

of 10 March 2005

in Case C-33/03: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (1)

(Failure of a Member State to fulfil its obligations - Articles 17 and 18 of the Sixth VAT Directive - Provision of national law under which an employer may deduct VAT on supplies of fuel to his employees when reimbursing their fuel costs)

(2005/C 115/04)

Language of the case: English

In Case C-33/03, action under Article 226 EC for failure to fulfil obligations, brought before the Court on 28 January 2003 — Commission of the European Communities (Agent: R. Lyal) v United Kingdom of Great Britain and Northern Ireland (Agents: P. Ormond and C. Jackson, assisted by N. Pleming QC) — the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Lenaerts (Rapporteur), N. Colneric, K. Schiemann and E. Juhász, Judges; C. Stix-Hackl, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 10 March 2005, in which it:

Declares that, by granting taxable persons the right to deduct value added tax on certain supplies of fuel to non-taxable persons, contrary to the provisions of Articles 17(2)(a) and 18(1)(a) 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, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive;

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

(1) OJ C 83 of 05.04.2003.

14.5.2005

Official Journal of the European Union

C 115/3

JUDGMENT OF THE COURT

(Third Chamber)

of 10 March 2005

in Joined Cases C-96/03 and C-97/03 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven): A. Tempelman v Directeur van de Rijksdienst voor de keuring van Vee en Vlees (1)

(Agriculture - Control of foot-and-mouth disease - Protective measures adopted in addition to the measures provided for in Directive 85/511/EEC - Powers of the Member States)

(2005/C 115/05)

Language of the case: Dutch

In Joined Cases C-96/03 and C-97/03: reference for a preliminary ruling under Article 234 EC from the College van Beroep voor het bedrijfsleven (Netherlands), made by decision of 7 January 2003, received at the Court on 4 March 2003, in the proceedings pending before that court between A. Tempelman (C-96/03), Mr and Mrs T.H.J.M. van Schaijk (C-97/03) and Directeur van de Rijksdienst voor de keuring van Vee en Vlees — 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; M. Poiares Maduro, Advocate General, M. Múgica Arzamendi, Principal Administrator, for the Registrar, gave a judgment on 10 March 2005, the operative part of which is as follows:

Since foot-and-mouth disease is a disease which constitutes a serious hazard for animals, Article 10(1) of Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market confers on Member States the power to adopt measures to control the disease in addition to those provided for in Council Directive 85/511/EEC of 18 November 1985 introducing Community measures for the control of foot-and-mouth disease, as amended by Council Directive 90/423/EEC of 26 June 1990, in particular the power to order the slaughter of animals belonging to a holding adjacent to or within a specific radius of a holding containing infected animals.

Such measures must be adopted in compliance with the objectives pursued by the Community rules in force and, more particularly, Directive 85/511, as amended by Directive 90/423, the general principles of Community law, such as the principle of proportionality, and the obligation to communicate laid down in Article 10(1) of Directive 90/425.

(1) OJ C 146 of 21.06.2003.

14.5.2005

Official Journal of the European Union

C 115/3

JUDGMENT OF THE COURT

(First Chamber)

of 17 February 2005

in Case C-215/03 (reference for a preliminary ruling from the Rechtbank te 's-Gravenhage): Salah Oulane v Minister voor Vreemdelingenzaken en Integratie (1)

(Free movement of persons - Right of entry and residence for nationals of Member States - Requirement to present an identity card or a passport - Pre-condition for recognition of right of residence - Penalty - Detention order for the purpose of deportation)

(2005/C 115/06)

Language of the case: Dutch

In Case C-215/03: reference for a preliminary ruling under Article 234 EC from the Rechtbank te 's-Gravenhage (Netherlands), made by decision of 12 May 2003, received at the Court on 19 May 2003, in the proceedings pending before that court between Salah Oulane and Minister voor Vreemdelingenzaken en Integratie — the Court (First Chamber), composed of P. Jann, President of the Chamber, N. Colneric, J.N. Cunha Rodrigues (Rapporteur), M. Ilešič and E. Levits, Judges; P. Leger, Advocate General, M. F. Contet, Principal Administrator, for the Registrar, gave a judgment on 17 February 2005, the operative part of which is as follows:

The third paragraph of Article 4(2) of Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services is to be interpreted as meaning that the recognition by a Member State of the right of residence of a recipient of services who is a national of another Member State may not be made subject to his production of a valid identity card or passport, where his identity and nationality can be proven unequivocally by other means.

It is contrary to Article 49 EC for nationals of a Member State to be required in another Member State to present a valid identity card or passport in order to prove their nationality, when the latter State does not impose a general obligation on its own nationals to provide evidence of identity, and permits them to prove their identity by any means allowed by national law.

A detention order with a view to deportation in respect of a national of another Member State, imposed on the basis of failure to present a valid identity card or passport even when there is no threat to public policy, constitutes an unjustified restriction on the freedom to provide services and is therefore contrary to Article 49 EC.

It is for nationals of a Member State residing in another Member State in their capacity as recipients of services to provide evidence establishing that their residence is lawful. If no such evidence is provided, the host Member State may undertake deportation, subject to the limits imposed by Community law.

(1) OJ C 171 of 19.07.2003.

14.5.2005

Official Journal of the European Union

C 115/4

JUDGMENT OF THE COURT

(Sixth Chamber)

of 10 March 2005

in Case C-235/03 Reference for a preliminary ruling from the Juzgado de Primera Instancia No 35 Barcelona: QDQ Media SA v Alejandro Omedas Lecha (1)

(Directive 2000/35/EC - Definition of recovery costs - Expenses of abogado or procurador in judicial proceedings where use of those legal practitioners is not required - Impossible to include in the costs on the basis of national law - Impossible to rely on the directive against an individual)

(2005/C 115/07)

Language of the case: Spanish

In Case C-235/03: reference for a preliminary ruling under Article 234 EC from the Juzgado de Primera Instancia No 35 de Barcelona (Spain), made by decision of 5 May 2003, received at the Court on 2 June 2003, in the proceedings between QDQ Media SA and Alejandro Omedas Lecha — the Court (Sixth Chamber), composed of A. Borg Barthet, President of the Chamber, J.-P. Puissochet (Rapporteur) and S. von Bahr, Judges; J. Kokott, Advocate General, R. Grass, Registrar, gave a judgment on 10 March 2005, the operative part of which is as follows:

Where it is not possible on the basis of national law to include, in the calculation of the costs which an individual who owes a business debt might be ordered to pay, the expenses arising from representation by an abogado or procurador of the creditor in judicial proceedings for the recovery of that debt, Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions cannot of itself serve as the basis for the inclusion of such expenses.

(1) OJ C 171 of 19.07.03.

14.5.2005

Official Journal of the European Union

C 115/4

JUDGMENT OF THE COURT

(First Chamber)

of 10 March 2005

in Case C-336/03 Reference for a preliminary ruling from the High Court of Justice of England and Wales, Chancery Division: easyCar (UK) Ltd v Office of Fair Trading (1)

(Protection of consumers in respect of distance contracts - Directive 97/7/EC - Contracts for the provision of transport services - Meaning - Contracts for car hire)

(2005/C 115/08)

Language of the case: English

In Case C-336/03: reference for a preliminary ruling under Article 234 EC from the High Court of Justice of England and Wales, Chancery Division (United Kingdom), made by decision of 21 July 2003, received at the Court on 20 July 2003, in the proceedings pending before that court between easyCar (UK) Ltd and Office of Fair Trading — the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Lenaerts, J.N. Cunha Rodrigues, K. Schiemann and M. Ilešič (Rapporteur), Judges; C. Stix-Hackl, Advocate General, K. Sztranc, Administrator, for the Registrar, gave a judgment on 10 March 2005, the operative part of which is as follows:

Article 3(2) of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts is to be interpreted as meaning that ‘contracts for the provision of transport services’ includes contracts for the provision of car hire services.

(1) OJ C 226 of 20.09.2003.

14.5.2005

Official Journal of the European Union

C 115/5

JUDGMENT OF THE COURT

(First Chamber)

of 10 March 2005

in Case C-342/03: Kingdom of Spain v Council of the European Union (1)

(Common commercial policy - Canned tuna originating in Thailand and the Philippines - Mediation within the WTO - Regulation (EC) No 975/2003 - Tariff quota)

(2005/C 115/09)

Language of the case: Spanish

In Case C-342/03, application for annulment under Article 230 EC, brought on 4 August 2003, Kingdom of Spain (Agent: N. Díaz Abad) v Council of the European Union (Agents: M. Bishop and D. Canga Fano) supported by Commission of the European Communities (Agents: X. Lewis and R. Vidal Puig) — the Court (First Chamber), composed of P. Jann, President of the Chamber, N. Colneric, J.N. Cunha Rodrigues, M. Ilešič (Rapporteur) and E. Levits, Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, gave a judgment on 10 March 2005, in which it:

1.	Dismisses the action;

2.	Orders the Kingdom of Spain to pay the costs, except those incurred by the Commission of the European Communities, which must bear its own costs.

(1) OJ C 226 of 20.09.2003.

14.5.2005

Official Journal of the European Union

C 115/5

JUDGMENT OF THE COURT OF JUSTICE

(Fifth Chamber)

of 10 March 2005

in Case C-449/03: Commission of the European Communities against French Republic (1)

(Failure of a member State to fulfil obligations - Management of waste - Waste tip at Saint-Laurent du Maroni - Directives 75/442/EE and 91/156/EEC)

(2005/C 115/10)

Language of the case French

In case C-449/03, action for failure to fulfil obligations brought on 24 October 2003 under Article 226 EC, Commission of the European Communities (Agents: M. Konstantinidis and B. Stromsky) against French Republic (agents: G. de Bergues and D. Petrausch), the Court (Fifth Chamber), composed of R. Silva de Lapuerta (Rapporteur), President of the Chamber, C. Gulmann and J. Klucka, Judges, Advocate General: L. A. Geelhoed, Registrar: R. Grass, has given a judgment on 10 March 2005 in which it:

Declares that,

—	by failing to issue a permit for the operation of the tip for household and equivalent waste situated within the limits of the municipality of Saint-Laurent du Maroni in French Guyana,

—	by refraining from taking the necessary measures to ensure that the waste on the abovementioned tip is treated or disposed of without endangering human health and without using processes or methods which might harm the environment, and

—	by refraining from taking the necessary measures to ensure that the operator of the abovementioned tip itself treats or disposes of waste or has it handled by a private or public waste collector,

the French Republic has failed to fulfil its obligations under Article 9, 4 and 8 of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991;

2.	Orders French Republic to pay the costs.

(1) OJ C 289, of 29.11.2003.

14.5.2005

Official Journal of the European Union

C 115/6

JUDGMENT OF THE COURT

(First Chamber)

of 3 March 2005

in Case C-472/03 (reference for a preliminary ruling from the Hoge Raad der Nederlanden): Staatssecretaris van Financiën v Arthur Andersen & Co. Accountants c.s. (1)

(Sixth VAT directive - Article 13B(a) - Exemption of services related to insurance transactions by insurance brokers and insurance agents - Life assurance - ‘Back office’ activities)

(2005/C 115/11)

Language of the case: Dutch

In Case C-472/03: reference for a preliminary ruling under Article 234 EC from the Hoge Raad der Nederlanden (Netherlands), made by decision of 7 November 2003, received at the Court on 12 November 2003, in the proceedings Staatssecretaris van Financiën v Arthur Andersen & Co. Accountants c.s. — the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Lenaerts (Rapporteur), N. Colneric, K. Schiemann and E. Juhász, Judges; M. Poiares Maduro, Advocate General, M.-F. Contet, Principal Administrator, for the Registrar, gave a judgment on 3 March 2005, the operative part of which is as follows:

Article 13B(a) 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 must be interpreted as meaning that 'back office' activities, consisting in rendering services, for payment, to an insurance company do not constitute the performance of services relating to insurance transactions carried out by an insurance broker or an insurance agent within the meaning of that provision.

(1) OJ C 21 of 24.01.2004.

14.5.2005

Official Journal of the European Union

C 115/6

JUDGMENT OF THE COURT

(First Chamber)

of 10 March 2005

in Case C-491/03 Reference for a preliminary ruling from the Hessischer Verwaltungsgerichtshof: Ottmar Hermann v Stadt Frankfurt am Main (1)

(Indirect tax - Directive 92/12/EEC - Local tax on the supply of alcoholic beverages for immediate consumption on the premises)

(2005/C 115/12)

Language of the case: German

In Case C-491/03: reference for a preliminary ruling under Article 234 EC from the Hessischer Verwaltungsgerichtshof (Germany), made by decision of 1 October 2003, received at the Court on 20 November 2003, in the proceedings pending before that court between Ottmar Hermann (in his capacity as liquidator of Volkswirt Weinschänken GmbH) and Stadt Frankfurt am Main — the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Lenaerts (Rapporteur), N. Colneric, K. Schiemann and E. Juhász, Judges; D. Ruiz-Jarabo Colomer, Advocate General, H. von Holstein, Deputy Registrar, for the Registrar, gave a judgment on 10 March 2005, the operative part of which is as follows:

A tax which is levied, in a catering context, on the supply for consideration of alcoholic beverages for immediate consumption on the premises must be considered to be a tax on the supply of services relating to products subject to excise duty which cannot be characterised as a turnover tax for the purposes of the second subparagraph of Article 3(3) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products.

The ‘same proviso’ to which taxes falling within the scope of the second subparagraph of Article 3(3) of Directive 92/12 are subject refers only to the condition set out in the first subparagraph of that paragraph, namely that such ‘taxes do not give rise to border-crossing formalities in trade between Member States’.

(1) OJ C 47 of 21.02.2004.

14.5.2005

Official Journal of the European Union

C 115/7

JUDGMENT OF THE COURT

(Fifth Chamber)

of 10 March 2005

in Case C-531/03: Commission of the European Communities v Federal Republic of Germany (1)

(Failure of a Member State to fulfil obligations - Directive 97/11/EC - Assessment of the effects of certain public and private projects on the environment - Road construction projects in certain Länder)

(2005/C 115/13)

Language of the case: German

In Case C-531/03 Commission of the European Communities (Agents: J.-C. Schieferer and F. Simonetti) v Federal Republic of Germany (Agents: C.-D. Quassowski and M. Lumma) — Action under Article 226 EC for failure to fulfil obligations, brought on 18 December 2003 — the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, J. Makarczyk (Rapporteur) and P. Kūris, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, gave a judgment on 10 March 2005, in which it:

Declares that, by failing to transpose, within the prescribed period, Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, for the purposes of road construction projects in the Land of Rheinland-Palatinate and by permitting, in the Land of North Rhine-Westphalia, on expiry of that time-limit, development consent for road construction projects by means of a planning approval procedure without an environmental impact assessment being carried out, the Federal Republic of Germany has failed to fulfil its obligations under that directive and under Article 4, in conjunction with point 7(b) and (c) of Annex I and point 10(e) of Annex II, of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 97/11.

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

(1) OJ C 59, 06.03.2004.

14.5.2005

Official Journal of the European Union

C 115/7

JUDGMENT OF THE COURT

(Third Chamber)

of 10 March 2005

in Case C-39/04 (reference for a preliminary ruling from the Tribunal administratif, Dijon): Laboratoires Fournier SA v Direction des vérifications nationales et internationales (1)

(Restrictions on the freedom to provide services - Tax legislation - Corporation tax - Tax credit for research)

(2005/C 115/14)

Language of the case: French

In Case C-39/04: reference for a preliminary ruling under Article 234 EC from the Tribunal administratif, Dijon (France), made by decision of 30 December 2003, received at the Court on 2 February 2004, in the proceedings pending before that court between Laboratoires Fournier SA and Direction des vérifications nationales et internationales, the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J.-P. Puissochet, S. von Bahr (Rapporteur), J. Malenovský and U. Lõhmus, Judges; F.G. Jacobs, Advocate General, K. Sztranc, Administratror, for the Registrar, gave a judgment on 10 March 2005, the operative part of which is as follows:

Article 49 EC precludes legislation of a Member State which restricts the benefit of a tax credit for research only to research carried out in that Member State.

(1) OJ C 71 of 20.03.2004.

14.5.2005

Official Journal of the European Union

C 115/7

JUDGMENT OF THE COURT

(Fifth Chamber)

of 10 March 2005

in Case C-236/04: Commission of the European Communities v Grand Duchy of Luxembourg (1)

(Failure of a Member State to fulfil obligations - Directives 2002/19/EC, 2002/20/EC, 2002/21/EC and 2002/22/EC - Electronic communications networks and services - Failure to transpose within the prescribed period)

(2005/C 115/15)

Language of the case: French

In Case C-236/04 Commission of the European Communities (Agent: M. Shotter) v Grand Duchy of Luxembourg (Agent: S. Schreiner) — Action under Article 226 EC for failure to fulfil obligations, brought on 7 June 2004 — the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, J. Makarczyk and P. Kūris (Rapporteur), Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, gave a judgment on 10 March 2005, in which it:

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directives 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive), 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), and 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive), the Grand Duchy of Luxembourg has failed to fulfil its obligations under those directives.

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

(1) OJ C 190, 24.07.2004.

14.5.2005

Official Journal of the European Union

C 115/8

JUDGMENT OF THE COURT

(Fifth Chamber)

of 10 March 2005

in Case C-240/04: Commission of the European Communities v Kingdom of Belgium (1)

(2005/C 115/16)

Language of the case: French

In Case C-240/04 Commission of the European Communities (Agent: M. Shotter) v Kingdom of Belgium (Agent: E. Dominkovits) — Action under Article 226 EC for failure to fulfil obligations, brought on 8 June 2004 — the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, J. Makarczyk and P. Kūris (Rapporteur), Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, gave a judgment on 10 March 2005, in which it:

Declares that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directives 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive), 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), and 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive), the Kingdom of Belgium has failed to fulfil its obligations under those directives.

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

(1) OJ C 190, 24.07.2004.

14.5.2005

Official Journal of the European Union

C 115/8

ORDER OF THE COURT

(Second Chamber)

of 17 February 2005

in Case C-250/03: Reference for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia in Giorgio Emanuele Mauri v Ministero della Giustizia, Commissione per gli esami di avvocato presso la Corte d'appello di Milano (1)

(Article 104(3) of the Rules of Procedure - Access to the profession of advocate - Rules on the examination for authorisation to practise as an advocate)

(2005/C 115/17)

Language of the case: Italian

In Case C-250/03: reference for a preliminary ruling under Article 234 EC from the Tribunale amministrativo regionale per la Lombardia, (Italy), made by decision of 13 November 2002, received at the Court on 11 June 2003, in the proceedings between Giorgio Emanuele Mauri and Ministero della Giustizia, Commissione per gli esami di avvocato presso la Corte d'appello di Milano — the Court (Second Chamber), composed of C.W.A. Timmermans (Rapporteur), President of the Chamber, C. Gulmann, R. Schintgen, J. Makarczyk and J. Klučka, Judges; P. Léger, Advocate General; R. Grass, Registrar, made an order on 17 February 2005, the operative part of which is as follows:

Articles 81 EC, 82 EC and 43 EC do not preclude a rule, such as that laid down by Article 22 of Royal Decree-Law No 1578 of 27 November 1933, in the version applicable at the time of the facts in the main proceedings, which provides that, in connection with the examination regulating access to the profession of advocate, the examination committee is to be composed of five members appointed by the Minister for Justice, namely two judges, a professor of law and two advocates, the latter being nominated by the Consiglio nazionale forense (National Bar Council) on a joint proposal by the bar councils of the district concerned.

(1) OJ C 200 of 23.08.2003.

14.5.2005

Official Journal of the European Union

C 115/9

Appeal brought on 14 February 2005 by Kingdom of Sweden against the judgment delivered on 30 November 2004 by the Fifth Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-168/02 between IFAW Internationaler Tierschutz-Fonds gGmbH, supported by Kingdom of the Netherlands, Kingdom of Sweden and by Kingdom of Denmark and Commission of the European Communities, supported by United Kingdom of Great Britain and Northern Ireland

(Case C-64/05 P)

(2005/C 115/18)

Language of procedure: English

An appeal against the judgment delivered on 30 November 2004 by the Fifth Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-168/02 (1) between IFAW Internationaler Tierschutz-Fonds gGmbH, supported by Kingdom of the Netherlands, Kingdom of Sweden and by Kingdom of Denmark and Commission of the European Communities, supported by United Kingdom of Great Britain and Northern Ireland, was brought before the Court of Justice of the European Communities on 14 February 2005 by Kingdom of Sweden, represented by K. Wistrand, acting as agent.

The Appellant claims that the Court should:

1.	set aside the Judgment of the Court of First Instance of 30 November 2004 in Case T-168/02;

2.	annul the decision of the Commission of 26 March 2002 and

3.	order the Commission to pay the costs incurred by the Kingdom of Sweden in the proceedings before the Court of Justice.

Pleas in law and main arguments:

The Swedish Government submits that the Court of First Instance has infringed Community law in the judgment under appeal.

The Court of First Instance first observed that the right of access to documents of the institutions, provided for in Article 2 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council (‘openness regulation’), covers all documents held by those institutions and, as a result, they may be required, in appropriate cases, to make available documents originating from third parties, including, in particular, the Member States. The Court of First Instance pointed out that the so-called authorship rule, that is to say, the principle that the person who drew up a document has control over the document and thus decides whether it may be disclosed, regardless of who holds the document, was not incorporated into the Regulation.

The Court of First Instance none the less took the view that Article 4(5) of the openness regulation implies that the Member States are subject to special treatment and that the authorship rule therefore applies to documents drawn up by Member States. To justify that position, the Court of First Instance pointed out, first, that the obligation to obtain agreement, under Article 4(5) of the openness regulation, would otherwise risk becoming a dead letter and, second, that it is neither the object nor the effect of that regulation to amend national legislation. According to the Court of First Instance, the Member State is under no obligation to state the reasons for any request made by it under Article 4(5) of the openness regulation.

However, the Swedish Government finds that there is no express and unequivocal support for the Court of First Instance's interpretation in the provision in question or elsewhere in the openness regulation. Under those circumstances none of the arguments on which the Court of First Instance based its interpretation, either on its own or taken together with the others, can constitute a reason to disregard the fundamental rule on which the openness regulation is based. According to the regulation, it is for the institution holding the document to assess whether a document should be disclosed. If none of the exceptions to the rule of disclosure in Articles 4(1) to 4(3) of the openness regulation is applicable, the document is to be disclosed. The obligation to obtain agreement under Article 4(5) of the openness regulation is a procedural rule which would serve its purpose even if the Member States were not allowed an absolute right of veto. Nor does the absence of a right of veto entail any amendment to national legislation.

Under the openness regulation a decision to refuse access to a document can only be made on the basis of one of the exceptions set out in Article 4(1) to 4(3). If the Member State in question does not state reasons for its refusal to disclose a document, that Member State thus incurs the risk that the institution will not be in a position to find that there is a specific need for confidentiality which can constitute a ground not to disclose the document according to the exceptions to the rule of disclosure in the openness regulation.

None of the arguments on which the Court of First Instance based its decision is sufficient to allow an exception in respect of documents from the Member States to be made to the fundamental principle that it is the institution which holds a document which is responsible for assessing whether it should be disclosed. The decision of the Court of First Instance thus infringed Community law.

(1) OJ C 202, 24.08.2002, p. 30.

14.5.2005

Official Journal of the European Union

C 115/10

Action brought on 21 February 2005 by the European Commission against the Council of the European Union

(Case C-91/05)

(2005/C 115/19)

Language of the case: English

An action against the Council of the European Union was brought before the Court of Justice of the European Communities on 21 February 2005 by the European Commission, represented by Pieter Jan Kuijper and Johan Enegren acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

1.	annul Council Decision 2004/833/CFSP (1)

2.	declare illegal and hence inapplicable Council Joint Action 2002/589/CFSP (2), in particular Title II thereof.

Pleas in law and main arguments:

The Commission is seeking the annulment for lack of competence under Article 230, second paragraph, of the EC Treaty of Council Decision 2004/833/CFSP of 2 December 2004 implementing Joint Action 2002/589/CFSP with a view to a European Union contribution to ECOWAS in the framework of the Moratorium on Small Arms and Light Weapons. The Council took this Decision under Title V of the Treaty on European Union, whereas Article 11(3) of the Cotonou agreement covers actions inter alia against the spread of small arms and light weapons. Moreover, the Commission had concluded pursuant to Article 10(2) of Annex 1V of the Cotonou agreement a Regional Indicative Programme for West Africa with the Economic Community of West African States (ECOWAS) and the West African Economic and Monetary Union (WAEMU), which gives support to a regional policy of conflict prevention and good governance, and announces support in particular for the moratorium on the import, export and production of light weapons in West Africa. Thus the impugned CFSP decision is in infringement of Article 47 TEU, since it affects Community powers in the field of development aid.

In addition, the Commission is seeking a declaration of illegality under Article 241 EC Treaty of Council Joint Action 2002/589/CFSP of 12 July 2002, and in particular Title II thereof, on the same basis and for the same reasons. Joint Action 2002/589/CFSP is an act of a general legislative nature on which the CFSP Decision is based, of which the annulment for lack of competence is sought. Hence that Joint Action, and more specifically Title II thereof should be declared inapplicable in the present case.

(1) Council Decision 2004/833/CFSP of 2 December 2004 implementing Joint Action 2002/589/CFSP with a view to a European Union contribution to ECOWAS in the framework of the Moratorium on Small Arms and Light Weapons, OJ L 359, 04.12.2004, p. 65.

(2) Council Joint Action 2002/589/CFSP of 12 July 2002 on the European Union's contribution to combating the destabilising accumulation and spread of small arms and light weapons and repealing Joint Action 1999/34/CFSP, OJ L 191, 19.07.2002, p. 1.

14.5.2005

Official Journal of the European Union

C 115/10

Appeal brought on 2 March 2005 (faxed on 28 February 2005) by El Corte Inglés against the judgment delivered on 13 December 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-8/03 between El Corte Inglés SA and the Office for Harmonisation in the Internal Market (trade marks and designs) (OHIM)

(Case C-104/05 P)

(2005/C 115/20)

Language of the case: Italian

On 2 March 2005 El Corte Inglés SA, represented by J. L. Rivas Zurdo, lawyer, brought before the Court of Justice of the European Communities an appeal against the judgment delivered on 13 December 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-8/03 El Corte Inglés SA and the Office for Harmonisation in the Internal Market (trade marks and designs) (OHIM)

The appellant claims that the Court should:

1.	set aside the judgment of the Court of First Instance of 13 December 2004 notified to the appellant on 20 December 2004 in Case T-8/03 dismissing the action brought by the appellant and ordering it to pay the costs;

uphold the action brought before the Court of First Instance seeking to establish:

(a)

annulment of the decision of 3 October 2002 of the Fourth Board of Appeal of OHIM (Joined Cases 700/2000-4 and 746/2000-4) in so far as it allows the appellant's appeal in part, dismisses the respondent's appeal and allows Community mark 203570 to be granted in respect of goods in Classes 18 and 24;

(b)

refusal of registration of Community trade mark 203570 ‘Emilio Pucci’ in respect of all the goods in Class 18: ‘Leather and imitations of leather, and goods made of these materials and not included in other classes; animal skins, hides; trunks and travelling bags; umbrellas, parasols and walking sticks; whips, harness and saddlery’ and of Class 24: ‘Textiles and textile goods, not included in other classes; bed and table covers’; the only classes in respect of which registration was allowed by OHIM;

(c)	Liability on the part of the respondent and the intervener to pay the costs in regard both to the present proceedings and to the proceedings at first instance.

Pleas and main arguments

Infringement of Article 8(1)(b) of Regulation No 40/94 given the similarity in this case between the products of the earlier marks and the products designated in the application;

The judgment under appeal refers to general and abstract criteria on the absence of similarity between the products, whereas the present case constitutes an exception;

The complementarity between the products in Classes 18 and 25 affirmed by the intervener itself in its pleading was not taken into consideration by the judgment, whereas that complementarity confirms the judicial criterion according to which the classes in the nomenclature are merely administrative criteria.

The criterion of the consuming public is a matter for consideration at the time when the application is dealt with. To that end the ‘relevant factors’ relied on in the judgment under appeal which generally characterise similarity between products are not absolute requirements in dealing with the scope of protection of two opposing marks.

The judgment appealed against centres the comparison on deductive and abstract criteria of a mechanistic nature without assessing the common denominator of the concept of fashion in its manifold aspects.

The consuming public (average consumer) is the first and last reference point to be taken into consideration in conflicts of marks for the purposes of Article 8(1)(b) of Regulation No 40/94.

Since similarity of signs and products gives rise to a likelihood of confusion the prohibition under Article 8(1)(b) of Regulation No 40/94 should be applied.

The evidence adduced by the applicant attests the fact that the mark ‘Emidio Tucci’ is well known, thus rendering Article 8(5) of Regulation No 40/94 applicable.

The judgment of the Court of First Instance does not adequately assess the reputation of the mark from 1994 or prior to 1996.

In the final analysis, a part of the Emidio Tucci clientele could be misled by the mark ‘Emilio Pucci’, bringing about an unwarranted advantage in favour of the latter mark to the detriment of the former mark and its exclusive sphere of distinctiveness.

14.5.2005

Official Journal of the European Union

C 115/11

Reference for a preliminary ruling from the Bundesfinanzhof by order of that court of 25 November 2004 in L. u. P. GmbH v Finanzamt Bochum-Mitte

(Case C-106/05)

(2005/C 115/21)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Bundesfinanzhof (Federal Finance Court) (Germany) of 25 November 2004, received at the Court Registry on 3 March 2005, for a preliminary ruling in the proceedings between L. u. P. GmbH (formerly B. Scharmann GmbH) and Finanzamt Bochum-Mitte on the following question:

Do Article 13A(1)(b) and (2) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes allow for the tax exemption for medical laboratory tests ordered by general practitioners to be made subject to the conditions specified in those provisions, even where medical care by such practitioners is exempt from taxation in any event?

14.5.2005

Official Journal of the European Union

C 115/12

Reference for a preliminary ruling from the Gerechtshof te 's-Gravenhage by order of that court of 27 January 2005 in Bovemij Verzekeringen N.V. v Benelux-Merkenbureau

(Case C-108/05)

(2005/C 115/22)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the Gerechtshof te 's-Gravenhage (Netherlands) of 27 January 2005, received at the Court Registry on 4 March 2005, for a preliminary ruling in the proceedings between Bovemij Verzekeringen N.V. and Benelux-Merkenbureau on the following questions:

(1)	[Omissis: question submitted to the Benelux Court of Justice]

Must Article 3(3) of the Directive (1) be interpreted as meaning that in order to acquire distinctive character (in the present case through a Benelux trade mark) as a result of use, as referred to in that provision, it is necessary that the sign be regarded as a trade mark, before the date of application, by the relevant public throughout the Benelux territory and, therefore, in Belgium, Netherlands and Luxembourg?

If the answer to question 2 is in the negative:

(3)

Is the condition for registration laid down in Article 3(3) of the Directive satisfied, for the purposes of that provision, if the sign, as result of the use made of it, is regarded as a trade mark by the relevant section of the public in a substantial part of the Benelux territory and can this substantial part be, for example, the Netherlands alone?

(4)

When assessing distinctive character acquired through use, within the meaning of Article 3(3) of the Directive, of a sign — consisting of one or more words of an official language in the territory of a Member State (or, as in the case in point, the Benelux territory) — is it necessary to take into account the language regions within that territory?

For registration as a mark, should the other requirements for registration be satisfied, is it sufficient if/required that the sign be regarded as a trade mark by the relevant section of the public in a substantial part of the language region of the Member State (or, as in the case in point, of the Benelux territory) in which that language is an official language?

(1) Council Directive 89/104/EEC of 21.12.1988 (OJ 1989, L 40, p. 1).

14.5.2005

Official Journal of the European Union

C 115/12

Action brought on 4 March 2005 by the Commission of the European Communities against the Italian Republic

(Case C-110/05)

(2005/C 115/23)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 4 March 2005 by the Commission of the European Communities, represented by D. Recchia and F. Amato, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

1.	declare that by prohibiting the towing of trailers by motor vehicles the Italian Republic has failed to fulfil its obligations under Article 28 EC;

2.	order the Italian Republic to pay the costs incurred by the Commission of the European Communities.

Pleas in law and main arguments

Under Article 56 of the Codice della strada (Italian highway code) the towing of trailers by any motor vehicle other than a tractor unit is prohibited in Italy.

According to the Commission there can be no doubt that the effect of that prohibition is to restrict the use of trailers lawfully produced and sold in Members States where there is no such prohibition, thereby establishing an obstacle to their importation and sale in Italy.

Consequently, the Commission submits that the Italian Republic has failed to fulfil its obligations under Article 28 EC.

14.5.2005

Official Journal of the European Union

C 115/13

Appeal brought on 4 March 2005 by European Federation for Cosmetic Ingredients (EFfCI) against the order made on 10 December 2004 by the Third Chamber of the Court of First Instance of the European Communities in Case T-196/03 between European Federation for Cosmetic Ingredients (EFfCI) and European Parliament and Council of the European Union

(Case C-113/05 P)

(2005/C 115/24)

Language of the case: English

An appeal against the order made on 10 December 2004 by the Third Chamber of the Court of First Instance of the European Communities in Case T-196/03 (1) between European Federation for Cosmetic Ingredients (EFfCI) and European Parliament and Council of the European Union, was brought before the Court of Justice of the European Communities on 4 March 2005 by European Federation for Cosmetic Ingredients (EFfCI), established in Brussels (Belgium), represented by K. Van Maldegem and C. Mereu, lawyers.

The Appellant claims that the Court should:

—	declare the present appeal admissible and well-founded;

—	set aside the order of the Court of First Instance of 10 December 2004 in Case T-196/03;

—	declare the Appellant's requests in Case T-196/03 admissible;

—	rule on the merits or, in the alternative, refer the case to the Court of First Instance to rule on the merits; and

—	order the European Parliament and the Council of the European Union to bear all the costs and expenses of both proceedings.

Pleas in law and main arguments:

The Appellant challenges paragraph 16 of the contested order, which rejects his request to examine the substance before ruling on admissibility or, in the alternative, to reserve any decision until judgment in the main proceedings. The Appellant submits that this rejection is unlawful because the Court of First Instance misinterprets Article 114(4) of the Rules of Procedure and infringes the principle of effectiveness and the duty to state reasons. The Court of First Instance should have interpreted Article 114(4) of the Rules of Procedure broadly and having due regard to the circumstances of the case in accordance with the legal principle of effectiveness. The Appellant also claims that the Court of First Instance has infringed its duty to state reasons by not giving further explanations for the rejection other than that ‘it has sufficient information from the documents in the file to give a decision on the applications’.

The Appellant submits that the Court of First Instance has erred in law by dismissing the Appellant's submissions and concluding that:

(a)

the anticompetitive effects produced by the contested measure on the Appellant do not distinguish him from other undertakings. The Appellant submits that other undertakings which do not supply the cosmetics sector, or which supply the cosmetics sector only and do not test their ingredients on animals or do not use CMR substances are in a different situation from that of the Appellant. The Appellant further submits that the Court of First Instance misinterprets the rationale stemming from the Extramet case.

(b)

the Appellant did not refer to any binding provision superior to the contested measure which might have compelled the Parliament and the Council to take into account the negative effects of the contested measure: the Appellant submits that Article 3(g) EC constitutes a binding provision compelling the Parliament and the Council to ensure that competition in the internal market is not distorted.

(c)

the Appellant's patents are not as such that the contested measure makes their commercial use immediately and definitively unlawful and, by consequence, make the Appellant ‘individually concerned’ by the contested measure. The Appellant submits that the fact that the contested measure expropriates him from his patented (exclusive) right makes him individually concerned in accordance with the Codorniú case.

(d)

the Appellant's claim that he is individually concerned because he participated in the procedure leading to the adoption of the contested measure on the basis of Article 13 of Directive 76/768 and its participation in the adoption of the contested measure is inadmissible: the Appellant submits that the Court of First Instance wrongly concluded that Article 13 refers only to individual measures, since Directive 76/768 does not provide for the possibility to adopt such measures.

Moreover, the Appellant claims that the Court of First Instance infringed the right to complete and effective judicial protection and the right to a fair hearing. The Appellant submits that his right to complete and effective judicial protection should have resulted in, at a minimum, the Court of First Instance hearing the substance of the case instead of refusing the Appellant's legal standing based on mere formal arguments.

(1) OJ C 184, 02.08.2003, p. 50.

14.5.2005

Official Journal of the European Union

C 115/14

Reference for a preliminary ruling from the Conseil d'État (France), acting in its judicial capacity, by order of that court of 10 January 2005 in Ministre de l'Économie, des Finances and de l'Industrie v Gillan Beach

(Case C-114/05)

(2005/C 115/25)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by order of the Conseil d'Etat (France), acting in its judicial capacity, of 10 January 2005, received at the Court Registry on 8 March 2005, for a preliminary ruling in the proceedings between Ministre de l'Economie, des Finances and de l'Industrie and Gillan Beach, a company, on the following question:

Whether an overall service provided by an organiser to exhibitors at a fair or in an exhibition hall falls within the scope of the first indent of Article 9(2)(c) of the Sixth Council Directive 77/388 of 17 May 1977 (1), Article 9(2)(a) of that directive or within any other of the categories of supply of services referred to in Article 9(2) of the directive.

(1) OJ L 145 of 13.6.1977, p. 1.

14.5.2005

Official Journal of the European Union

C 115/14

Reference for a preliminary ruling from the Tribunal de commerce de Nancy by judgment of that court of 14 February 2005 in Ets Dhumeaux et Cie SA — Société d'Etudes et de Commerce ‘SEC’ v ALBV SA, ALBV SA v Tragex Gel — Institut d'expertise vétérinaire ‘IEV’, ALBV SA v Cigma International SA and ALBV SA v Mr Gustin in his capacity as administrator of Tragex Gel

(Case C-116/05)

(2005/C 115/26)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by judgment of the Tribunal de commerce de Nancy (France) of 14 February 2005, received at the Court Registry on 10 March 2005, for a preliminary ruling in the proceedings between Ets Dhumeaux et Cie SA — Société d'Etudes et de Commerce ‘SEC’ and ALBV SA, ALBV SA and Tragex Gel — Institut d'expertise vétérinaire ‘IEV’, ALBV SA and Cigma International SA and ALBV SA and Mr Gustin in his capacity as administrator of Tragex Gel on the following questions:

—

Where the export of beef and veal on which refunds are granted requires the presentation of a health certificate formally drawn up by the competent veterinary authority after daily inspections of the cutting plant for that meat, must the principle of legitimate expectations be interpreted as meaning that the recipients of that certificate (the intermediary purchaser, the exporter) may legitimately expect it to correspond with the product origin indicated, such that any errors, faults or negligent acts committed by those authorities in exercising their powers must be regarded as exceeding the ordinary risks of business borne by those recipients and must lead the Member State in question to assume directly the financial and other consequences thereof, in particular vis-à-vis the EAGGF?

—

Where trading in beef and veal requires the presentation of certificates of health and origin formally drawn up by the competent veterinary authority after daily inspections of the production plant, do the errors, faults or negligent acts established by a court, which are committed by those authorities in exercising their powers and lead to incorrect certification to the detriment of the operators and exporters, constitute force majeure?

14.5.2005

Official Journal of the European Union

C 115/15

Action brought on 14 March 2005 by the Commission of the European Communities against the Italian Republic

(Case C-122/05)

(2005/C 115/27)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 14 March 2005 by the Commission of the European Communities, represented by U. Wölker and D. Recchia, members of the Commission's legal service.

The applicant claims that the Court should:

declare that, by failing to adopt all laws, regulations and administrative provisions necessary to comply with Directive 2003/87/EC (1) of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (2) or, in any event, by failing to notify the Commission of those provisions, the Italian Republic has failed to fulfil its obligations under Article 31(1) of that directive;

2.	order the Italian Republic to pay the costs.

Pleas in law and main arguments

The time-limit for complying with the directive expired on 31 December 2003.

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

(2) OJ L 257 of 10.10.1996, p. 26.

14.5.2005

Official Journal of the European Union

C 115/15

Action brought on 15 March 2005 by the Commission of the European Communities against the Italian Republic

(Case C-123/05)

(2005/C 115/28)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 15 March 2005 by the Commission of the European Communities, represented by X. Lewis and A. Aresu, members of the Commission's legal service.

The applicant claims that the Court should:

declare that by adopting Article 44 of Law No 724 of 23 December 1994, amending Article 6(2) of Law No 573 of 24 December 1993 so as to permit the renewal of public service contracts to previous contract-holders, the Italian Republic has failed to fulfil its obligations under Articles 11, 15 and 17 of Council Directive 92/50/EEC (1) of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, and Articles 6 and 9 of Council Directive 93/36/EEC (2) of 14 June 1993 coordinating procedures for the award of public supply contracts, and Articles 43 EC and 49 EC;

2.	order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Commission has challenged Article 6(2) of Law No 537 of 1993 as amended by Article 44 of Law No 724 of 1994. In particular that provision prohibits the tacit renewal of public contracts for the supply of goods and services but also provides that ‘within three months of the expiry of the contracts the administration shall ascertain whether it is convenient and in the public interest for those contracts to be renewed and, if so, shall notify the contracting party of its willingness to renew the contract.’

The Commission submits that those provisions allow public bodies to award, directly and without any tendering procedure, new service and supply contracts which are thus awarded under procedures which do not comply with Community law. There is an infringement of the principles laid down by Directive 92/50/EEC and 93/36/EEC respectively on public service and supply contracts. Furthermore, those provisions infringe the principles of equality and transparency intended to ensure the freedoms of establishment and the supply of services under Articles 43 EC and 49 EC.

(1) OJ 1992 L 209 of 24.07.1992, p. 1.

(2) OJ 1993 L 199 of 09.08.1993, p. 1.

14.5.2005

Official Journal of the European Union

C 115/16

Action brought on 22 March 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-136/05)

(2005/C 115/29)

Language of the case: French

An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 22 March 2005 by the Commission of the European Communities, represented by Enrico Traversa and Denis Martin, acting as Agents, with an address for service in Luxembourg.

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

—

declare that, by having failed to adopt the measures necessary to comply with the judgment delivered by the Court on 6 March 2003 in Case C-478/01 concerning the obligation for patent agents, when supplying services, to opt for domicile with an approved agent, the Grand Duchy of Luxembourg has failed to fulfil its duties under Articles 49 EC and 10 EC,

—	order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

In its judgment delivered on 6 March 2003 in Case C-478/01, the Court ruled that:

‘[H]aving regard to the requirement that patent agents, when supplying services, should elect domicile with an approved agent, and having regard to the fact that the Luxembourg Government did not supply information concerning the precise conditions for the application of Article 85(2) of the Law of 20 July 1992 amending the rules on patents and Articles 19 and 20 of the Law of 28 December 1998 governing access to craft trades, business and industry, and to certain liberal professions, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 49 EC and Article 10 EC respectively.’

In accordance with the procedure laid down in Article 228 EC, by letter of 19 December 2003 the Commission reminded the Grand Duchy of Luxembourg that it was required to comply with its obligations under the judgment delivered in Case C-478/01 and invited it to submit observations within a period of two months.

That letter having gone unanswered, the Commission sent a reasoned opinion to the Luxembourg authorities by letter on 9 July 2004.

No reply was given to the reasoned opinion either.

The Luxembourg authorities having answered neither the letter of formal notice nor the reasoned opinion, it is unarguable that they have not, to date, taken the measures necessary to comply with the judgment delivered in Case C-478/01.

In accordance with the second sentence of the second subparagraph of Article 228(2), the Commission has specified in its application the amount of the lump sum or penalty payment to be paid by the Member State concerned that it considers appropriate in the circumstances.

In this instance, the Commission takes the view that a penalty payment of EUR 9 100 a day fits the seriousness and duration of the infringement and takes into consideration the need to give this penalty payment the required deterrent effect.

14.5.2005

Official Journal of the European Union

C 115/17

Action brought on 29 March 2005 by Kingdom of Spain against the Council of the European Union

(Case C-139/05)

(2005/C 115/30)

Language of the case: Spanish

An action against the Council of the European Union was brought before the Court of Justice of the European Communities on 29 March 2005 by Kingdom of Spain, represented by Enrique Braquehais Conesa, Abogado del Estado, acting as Agent, with an address for service in Luxembourg.

The applicant claims that the Court should:

annul Council Regulation (EC) No 27/2005 (1) of 22 December 2004 fixing for 2005 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required, in so far as it does not allocate quotas to Spain in relation to the fishing opportunities which were distributed before the accession of that State in respect of the North Sea;

2.	order the defendant institution to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are identical to those in Case C-133/04 (2).

(1) OJ L 12 of 14.1.2005, p. 1.

(2) OJ C 106, of 30.04.2004, p. 38.

14.5.2005

Official Journal of the European Union

C 115/17

Action brought on 29 March 2005 by Kingdom of Spain against the Council of the European Union

(Case C-141/05)

(2005/C 115/31)

Language of the case: Spanish

The applicant claims that the Court should:

annul Council Regulation (EC) No 27/2005 of 22 December 2004 (1) fixing for 2005 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required, in so far as it does not assign specific quotas to the Spanish fleet in Community waters in the North Sea and the Baltic Sea;

2.	order the defendant institution to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are identical to those in Case C-134/04 (2).

(1) OJ L 12, of 14.01.2005, p. 1.

(2) OJ C 106, of 30. 04. 2004, p. 39.

14.5.2005

Official Journal of the European Union

C 115/17

Action brought on 6 April 2005 by the Commission of the European Communities against the French Republic

(Case C-160/05)

(2005/C 115/32)

Language of the case: French

An action against the French Republic was brought before the Court of Justice of the European Communities on 6 April 2005 by the Commission of the European Communities, represented by D. Maidani, acting as Agent, with an address for service in Luxembourg.

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

declare that, by failing to adopt the laws, regulations and administrative provisions which are necessary in order to comply with Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2002 on financial collateral arrangements (1)and, in any event, by failing to inform the Commission of them, the French Republic has failed to fulfil its obligations under that directive;

2.	order the French Republic to pay the costs.

Pleas in law and main arguments

The period for transposing the directive into national law expired on 27 December 2003.

(1) OJ L 168 of 27.06.2002, p. 43.

14.5.2005

Official Journal of the European Union

C 115/18

Action brought on 8 April 2005 by the Commission of the European Communities against the French Republic

(Case C-164/05)

(2005/C 115/33)

Language of the case: French

An action against the French Republic was brought before the Court of Justice of the European Communities on 8 April 2005 by the Commission of the European Communities, represented by D. Maidani and H. Støvlbæk, acting as Agents, with an address for service in Luxembourg.

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

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 amending Council Directives 89/48/EEC and 92/51/EEC on the general system for the recognition of professional qualifications and Council Directives 77/452/EEC, 77/453/EEC, 78/686/EEC, 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC, 80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor (1) and, in any event, by failing to communicate them to the Commission, the French Republic has failed to fulfil its obligations under that directive;

2.	order the French Republic to pay the costs.

Pleas in law and main arguments

The period for transposition of the Directive into national law expired on 1 January 2003.

(1) OJ L 206, 31.07.2001, p. 1.

14.5.2005

Official Journal of the European Union

C 115/19

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 9 March 2005

in Case T-254/02, L v Commission of the European Communities (1)

(Officials - Duty to provide assistance - Article 24 of the Staff Regulations - Scope - Harassment - Claim for compensation - Occupational illness)

(2005/C 115/35)

Language of the case: French

In Case T-254/02, L, an official of the Commission of the European Communities, residing in London (United Kingdom), represented by J. Van Rossum, and then by S. Rodrigues and P. Legros, lawyers, with an address for service in Luxembourg, against Commission of the European Communities (Agent: J. Currall, assisted by D. Waelbroeck, lawyer, with an address for service in Luxembourg) — APPLICATION for the annulment of the Commission decisions rejecting a request for assistance, access to documents and compensation, and refusing to recognise an occupational illness, and, also, a claim for damages, the Court of First Instance (Fourth Chamber), composed of H. Legal, President, V. Tiili and M. Vilaras, Judges; for the Registrar: M. I. Natsinas, administrator, has given a judgment on 9 March 2005 in which it:

1.	Dismisses the application;

2.	Orders the parties to bear their own costs.

(1) OJ C 261 of 26.10.2002.

14.5.2005

Official Journal of the European Union

C 115/19

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 8 March 2005

in Case T-275/02 D v European Investment Bank (EIB) (1)

(Agents of the EIB - Action for annulment - Admissibility - Extension of the probationary period - Termination of contract - Conditions - Action for compensation)

(2005/C 115/36)

Language of the case: French

In Case T-275/02: D, a former agent of the European Investment Bank, residing in Luxembourg (Luxembourg), represented by J. Choucroun, lawyer, with an address for service in Luxembourg, against European Investment Bank (EIB) (Agent: J.-P. Minnaert, assisted by P. Mousel, lawyer, with an address for service in Luxembourg) — application for annulment of the decisions of the EIB extending the applicant's probationary period and terminating his contract, and application for compensation in respect of the material and non-material damage allegedly suffered — the Court of First Instance (Fifth Chamber), composed of M. Vilaras, President, F. Dehousse and D. Šváby, Judges; C. Kristensen, Administrator, for the Registrar, has given a judgment on 8 March 2005, in which it:

1.	Dismisses the action;

2.	Declares that it is unnecessary to rule on the request for confidentiality of the European Investment Bank;

3.	Orders the parties to bear their own costs.

(1) OJ C 261 of 26.10.2002.

14.5.2005

Official Journal of the European Union

C 115/20

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 8 March 2005

in Case T-32/03 Leder & Schuh AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Opposition proceedings - Earlier national word mark ‘Schuhpark’ - Application for Community word mark ‘JELLO SCHUHPARK’ - Relative ground for refusal - Partial refusal to register - Article 8(1)(b) of Regulation (EC) No 40/94)

(2005/C 115/37)

Language of the case: German

In Case T-32/03: Leder & Schuh AG, established in Graz (Austria), represented by W. Kellentur and A. Schlaffge, lawyers, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: G. Schneider and B. Müller), the other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance, being Schuhpark Fascies GmbH, established in Warendorf (Germany), represented by A. Peter, lawyer — action against the decision of the Third Board of Appeal of OHIM of 27 November 2002, in the corrected version of 9 December 2002 (Case R 494/1999-3), relating to opposition proceedings between Schuhpark Fascies GmbH and Leder & Schuh AG — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, N.J. Forwood and S. Papasavvas, Judges; B. Pastor, Deputy Registrar, for the Registrar, gave a judgment on 8 March 2005, in which it:

1.	Dismisses the application;

2.	Orders the applicant to bear the costs.

(1) OJ C 101 of 26.4.2003.

14.5.2005

Official Journal of the European Union

C 115/20

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 9 March 2005

in Case T-33/03 Osotspa Co. Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Opposition proceedings - Earlier national and Community figurative SHARK marks - Application for Community word mark Hai - Absolute ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2005/C 115/38)

Language of the case: German

In Case T-33/03: Osotspa Co. Ltd, established in Bangkok (Thailand), represented by C. Gassauer-Fleissner, lawyer, with an address for service in Luxembourg, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: A. von Mühlendahl, T. Eichenberg and G. Schneider), the other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance, being Distribution & Marketing GmbH, established in Salzburg (Austria), represented initially by C. Hauer and subsequently by V. von Bomhard, A. Renck and A. Pohlmann, lawyers — action brought against the decision of the Third Board of Appeal of OHIM of 27 November 2002 (Case R 296/2002-3) concerning opposition proceedings between Osotspa Co. Ltd and Distribution & Marketing GmbH — the Court of First Instance (Fourth Chamber), composed of H. Legal, President, V. Tiili and V. Vadapalas, Judges; D. Christensen, Administrator, for the Registrar, gave a judgment on 9 March 2005, in which it:

1.	Dismisses the action;

2.	Orders the applicant to pay the costs.

(1) OJ C 135 of 7.6.2003.

14.5.2005

Official Journal of the European Union

C 115/21

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 8 March 2005

in Case T-277/03 Dionysia Vlachaki, spouse of Petros Eleftheriadis v Commission of the European Communities (1)

(Former auxiliary staff - Recovery of remuneration unduly paid after expiry of the contract - Interest on arrears - Action for annulment - Statement of reasons - Force majeure)

(2005/C 115/39)

Language of the case: Greek

In Case T-277/03: Dionysia Vlachaki, spouse of Petros Eleftheriadis, residing in Polydroso Amarousiou (Greece), represented by T. Sigalas, lawyer, against the Commission of the European Communities (Agents: I. Dimitriou and G. Wilms, with an address for service in Luxembourg) — application for annulment or partial variation of Commission decision C(2003)738 final of 25 March 2003 concerning the recovery of remuneration unduly paid to the applicant, a former auxiliary agent — the Court of First Instance (Fifth Chamber), composed of M. Vilaras, President, F. Dehousse and D. Šváby, Judges; I. Natsinas, Administrator, for the Registrar, gave a judgment on 8 March 2005, in which it:

1.	Dismisses the application;

2.	Orders the parties to bear their own costs.

(1) OJ C 264 of 1.11.2003.

14.5.2005

Official Journal of the European Union

C 115/21

ORDER OF THE COURT OF FIRST INSTANCE

of 10 January 2005

in Case T-357/03 Bruno Gollnisch and Others v European Parliament (1)

(Decision of the Bureau of the European Parliament - Action for annulment - Inadmissibility)

(2005/C 115/40)

Language of the case: French

In Case T-357/03: Bruno Gollnisch, residing in Limonest (France), Marie-France Stirbois, residing in Villeneuve-Loubet (France), Carl Lang, residing in Boulogne-Billancourt (France), Jean-Claude Martinez, residing in Montpellier (France), Philip Claeys, residing in Overijse (Belgium) and Koen Dillen, residing in Antwerp (Belgium), represented by W. de Saint Just, lawyer, against the European Parliament (Agents: H. Krück and N. Lorenz, having an address for service in Luxembourg) — action for annulment of the decision of the Bureau of the European Parliament of 2 July 2003 amending the rules on the use of credits under budgetary heading 3701 of the general budget of the European Union — the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A.W.H. Meij and I. Pelikánová, Judges; H. Jung, Registrar, made an order on 10 January 2005, the operative part of which is as follows:

1.	The opinion of the Parliament's legal service, produced by the applicants in Annex 5 to the application, is removed from the file;

2.	The action is dismissed as inadmissible;

3.	The applicants shall bear their own costs and pay those incurred by the Parliament.

(1) OJ C 7 of 10.1.2004.

14.5.2005

Official Journal of the European Union

C 115/21

ORDER OF THE COURT OF FIRST INSTANCE

of 10 January 2005

in Case T-209/04 Kingdom of Spain v Commission of the European Communities (1)

(Fisheries policy - Detailed rules and arrangements regarding Community structural assistance in the fisheries sector - Request for authorisation for the establishment of joint enterprises - Failure by the Commission to take a decision - Action for failure to act - Action manifestly unfounded)

(2005/C 115/41)

Language of the case: Spanish

In Case T-209/04: the Kingdom of Spain, represented by N. Díaz Abad, lawyer, with an address for service in Luxembourg, against the Commission of the European Communities (Agents: T. van Rijn and S. Pardo Quintillán) — action for failure to act seeking a declaration that the Commission has unlawfully omitted to take a decision on the authorisations requested by the Spanish authorities concerning the establishment of joint enterprises, in accordance with Council Regulation (EC) No 2792/1999 of 17 December 1999 laying down the detailed rules and arrangements regarding Community structural assistance in the fisheries sector (OJ 1999 L 337, p. 10), as amended by Council Regulation (EC) No 2369/2002 of 20 December 2002 (OJ 2002 L 358, p. 49) — the Court of First Instance (Third Chamber), composed of M. Jaeger, President, J. Azizi and E. Cremona, Judges; H. Jung, Registrar, made an order on 10 January 2005, the operative part of which is as follows:

1.	The action is dismissed so far as concerns the requests relating to the vessels Balcagia and Enterprace;

2.	There is no further need to adjudicate on the remainder of the action;

3.	The applicant shall bear the costs.

(1) OJ C 201 of 7.8.2004.

14.5.2005

Official Journal of the European Union

C 115/22

Action brought on 30 December 2004 by Arturo Ruiz Bravo-Villasante against the Commission of the European Communities

(Case T-507/04)

(2005/C 115/42)

Language of the case: Spanish

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 30 December 2004 by Arturo Ruiz Bravo-Villasante, residing in Madrid, represented by Jose Luis Fuertes Suárez, lawyer.

The applicant claims that the Court of First Instance should:

annul the decision of the appointing authority, namely the Director of the European Personnel Selection Office, of 23 August 2004, dealing with the complaint against the decision of the selection board in Competition COM/B/2/02, concerning the marks awarded in the oral test and his exclusion from the list of successful candidates in the competition of 22 April 2004;

2.	order the Commission to pay the costs.

Pleas in law and main arguments

The applicant in these proceedings contests the decision of the selection board in Competition COM/B/2/02, excluding him, as a result of the marks awarded in his oral test, from the list of candidates finally selected.

In that respect, the applicant requested the chairman of the selection board to review his oral test; the chairman replied that the selection board had confined itself in his case to applying the assessment criteria (‘grille d'évaluation’) used for all the candidates and that the manner in which the selection board had applied the classification procedure was protected by the requirement of confidentiality.

In support of his claims, the applicant alleges infringement of the principle of transparency and disregard of what constitutes a ‘document’, for Community purposes, basing its decision to exclude the applicant on an existing document (la grille d'évaluation), the contents of which are not specified and which remain confidential.

14.5.2005

Official Journal of the European Union

C 115/22

Action brought on 19 January 2005 by Claire Staelen against European Parliament

(Case T-32/05)

(2005/C 115/43)

Language of the case: French

An action against the European Parliament was brought before the Court of First Instance of the European Communities on 19 January 2005 by Claire Staelen, residing in Bridel (Luxembourg), represented by Joëlle Choucroun, lawyer, having an address for service in Luxembourg.

The applicant claims that the Court should:

1.	annul the decision of the selection board of 18 August 2004 in Competition EUR/A/151/98;

order the European Parliament to pay to the applicant the sum of EUR 30 000 in respect of compensation for the non-material damage which she claims to have suffered, increased by the statutory interest in force in the Grand Duchy of Luxembourg from the date of the judgment to be delivered until full and final settlement, the substantive damage being reserved;

3.	order the European Parliament to pay all of the costs incurred in the proceedings.

Pleas in law and main arguments

The applicant had brought an action against the decision of the selection board in Competition EUR/151/98. By judgment delivered by the Court of First Instance on 5 March 2003 in Case T-24/01, that decision was set aside. Following that annulment, the Parliament reopened the competition and the selection board resumed its deliberations. By the decision contested in the present case, the selection board for the competition decided not to place the applicant on the list of successful candidates.

In support of her action, the applicant alleges a breach of Article 233 EC, maintenance of discriminatory treatment and infringement of the principle of the protection of legitimate expectations.

14.5.2005

Official Journal of the European Union

C 115/23

Action brought on 4 February 2005 by SP Entertainment Development GmbH against the Commission of the European Communities

(Case T-44/05)

(2005/C 115/44)

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 4 February 2005 by SP Entertainment Development GmbH, Norderfriedrichskoog (Germany), represented by C. Demleitner, lawyer.

The applicant claims that the Court should:

—	annul Commission Decision D/57536 of 20 October 2004;

—	order the Commission to pay the necessary costs.

Pleas in law and main arguments

In the contested decision the Commission called upon Germany to reclaim a loan which was granted to a predecessor company of the applicant by an associated company of the City of Bremen. The applicant claims that this decision was based on the unfounded assumption of the Commission that the loan in question had not yet been repaid. According to the applicant, repayment had already been made by means of transfer of a stake in the company to which the loan was granted to the company which granted the loan. This repayment by means of ‘payment instead of performance’ does not constitute State aid for the purposes of Article 87(1) EC that is contrary to Community law since the value of the assigned stake amounts at least to the sum of the loan. Additionally, interest was paid up to 31 December 2003. From this date the applicant did not have to pay any interest since the transfer of the stake was delayed due to reasons for which the applicant was not responsible.

14.5.2005

Official Journal of the European Union

C 115/23

Action brought on 17 February 2005 by Deutsche Telekom AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-72/05)

(2005/C 115/45)

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 17 February 2005 by Deutsche Telekom AG, Bonn, Germany, represented by J.-C. Gaedertz and D.R. Marschollek, lawyers.

The applicant claims that the Court should:

—	set aside the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 15 December 2004;

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

Pleas in law and main arguments

Community trade mark sought:

The word mark 'Telekom Global Net' for goods and services in Classes 9, 16, 35, 36, 38, 39, 41 and 42 (Electric instruments, printed matter, advertising, financial and real estate affairs, telecommunications, transport and storage, education, computer programming…) — Application No 2 168 169.

Decision of the Examiner:

Refusal of the application for almost all of the goods and services in Classes 9, 38 and 42.

Decision of the Board of Appeal:

Dismissal of the appeal.

Pleas in law:

—	The mark applied for displays no descriptive character in relation to the goods and services in Classes 9, 38 and 42 for the purposes of Article 7(1)(c) of Council Regulation (EC) No 40/94.

—	The mark applied for has sufficient distinctive character within the meaning of Article 7(1)(b) of Regulation (EC) No 40/94.

14.5.2005

Official Journal of the European Union

C 115/24

Action brought on 24 February 2005 by Omega, S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-90/05)

(2005/C 115/46)

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 24 February 2005 by Omega, S.A., established in Bienne (Switzerland) represented by P. González-Bueno Catalán de Ocon.

Omega Engineering, Inc., established in Stamford, Connecticut (USA) was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

—	Annul the decision of the Second Board of Appeal dated 10 December 2004 in case R 330/2002-2;

—	Order that the Office shall bear the costs.

Pleas in law and main arguments

Applicant for Community trade mark:	The applicant
Community trade mark concerned:	Figurative mark OMEGA for goods and services in classes 3, 9, 14, 16, 25, 28, 35, 37, 38, 41 and 42 application No 225 771
Proprietor of mark or sign cited in the opposition proceedings:	Omega Engineering Inc.
Trade mark or sign cited in opposition:	National word and figurative marks OMEGA, MICROMEGA, OMEGA.COM, OMEGASOFT, OMEGANET for goods in classes 1, 2, 6, 7, 8, 9, 11, 14, 16, 17, 18, 35, 41, and 42
Decision of the Opposition Division:	Refusal of registration for goods and services in classes 9 and 42
Decision of the Board of Appeal:	Appeal dismissed
Pleas in law:	Misapplication of Article 8(1)(b) of Regulation (EC) No 40/94 (1)

(1) Council Regulation (EC) No 40/94 of 20.12.1993 on the Community trade mark (OJ L 11, p. 1).

14.5.2005

Official Journal of the European Union

C 115/25

Action brought on 28 February 2005 by Sinara Handel GmbH against the Council of the European Union and the Commission of the European Communities

(Case T-91/05)

(2005/C 115/47)

Language of the case: English

An action against the Council of the European Union and the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 28 February 2005 by Sinara Handel GmbH, established in Cologne (Germany), represented by K. Adamantopoulos and E. Petritsi, lawyers.

The applicant claims that the Court should:

—

order the European Community to make good the damage suffered as a result of the adoption of the definitive anti-dumping measures prescribed by Council Regulation (EC) No 2320/97 of 17 November 1997, by awarding the amounts of EUR 1 633 344,33 to the applicant for loss of profit for the period between June 2000 and December 2002, together with default interest on this amount of 8 % annually;

—

in the alternative, to award a sum to the applicant by way of compensation for damage for loss of profit for the period between June 2000 and December 2002, to be assessed during the proceedings, following an interlocutory judgement of the Court, by agreement between the parties, and if no agreement is reached, by a final judgment of the Court;

—	order that all costs occasioned by the applicant in the course of the present proceedings be borne by the Council and the Commission.

Pleas in law and main arguments

The applicant is an importer of seamless pipes and tubes in the Community and is affected by the measures imposed by Council Regulation (EC) No 2320/97 of 17 November 1997 imposing definitive anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating in Hungary, Poland, Russia, the Czech Republic, Romania and the Slovak Republic, repealing Regulation (EEC) No 1189/93 and terminating the proceeding in respect of such imports originating in the Republic of Croatia (1).

The Commission also adopted Commission Decision 2003/382/EC of 8 December 1999 relating to a proceeding under Article 81 of the EC Treaty (Case IV/E-1/35.860-B seamless steel tubes) (2), and imposing a fine on several Community producers of seamless pipes and tubes.

The applicant claims that, given the overlap in the product scope, the companies involved and the periods of investigation of the competition and anti-dumping proceedings, the anti-competitive conduct of the Community producers affected the injury and causality analysis of the anti-dumping proceedings. The applicant submits that the defendants failed to take into account the anti-competitive conduct in their assessment of the injury caused by the imports and therefore breached Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (3) and infringed their obligation of good and sound administration and due care and diligence. The applicant also invokes a violation of the principle of legitimate expectations and proportionality.

The applicant states that the defendants have recognised in Council Regulation (EC) No 1322/2004 of 16 July 2004 amending Regulation (EC) No 2320/97 imposing definitive anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating in, inter alia, Russia and Romania (4) that the outcome of the analysis in the anti- dumping proceedings could have been different if the anti-competitive conduct had been considered.

The applicant therefore claims damages for loss of profit suffered by it for the period between June 2000 and December 2002.

(1) OJ L 322, p. 1.

(2) OJ 2003 L 140, p. 1.

(3) OJ L 56, p. 1.

(4) OJ L 246, p. 10.

14.5.2005

Official Journal of the European Union

C 115/26

Action brought on 25 February 2005 by Movingpeople.net International B.V. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-92/05)

(2005/C 115/48)

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 February 2005 by Movingpeople.net International B.V., established in Helmond (The Netherlands), represented by G.S.C.M. van Roeyen and T. Berendsen, lawyers.

Thomas Schäfer, residing in Schashagen (Germany) was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

—	annul the contested decision to the extent that Community trademark application No 1 997 733 will be accepted for all goods applied for in classes 10, 12 and 20;

—	order OHIM and/or the opponent to pay the costs.

Pleas in law and main arguments

Applicant for Community trade mark:	Movingpeople.net International B.V.
Community trade mark concerned:	The figurative mark ‘movingpeople.net’ for goods in classes 10, 12 and 20 (Vehicles; apparatus for locomotion by land, air or water,...; all the aforesaid goods specially made for disabled persons and other persons requiring assistance;...) — application No 1 997 733
Proprietor of mark or sign cited in the opposition proceedings:	Thomas Schäfer
Trade mark or sign cited in opposition:	The national word mark ‘MOVING PEOPLE’ for goods and services in classes 12 and 37 (Vehicles; flight apparatus, electrical operated wheelchairs and patient wheelchairs,...)
Decision of the Opposition Division:	Rejection of the Community trade mark application for the contested goods
Decision of the Board of Appeal:	Dismissal of the appeal
Pleas in law:	Violation of Article 8(1)(b) of Council Regulation No 40/94

14.5.2005

Official Journal of the European Union

C 115/26

Action brought on 16 February 2005 by Monte di Massima s.a.s. di Pruneddu Leonardo & C. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-96/05)

(2005/C 115/49)

Language of the case: Italian

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 16 February 2005 by Monte di Massima s.a.s. di Pruneddu Leonardo & C., represented by Ennio Masu and Paola Alessandra E. Pittalis, lawyers.

The other party to the proceedings before the Board of Appeal was J. M. Höffele Internationale Handelsgesellschaft.

The applicant claims that the Court should:

1.	declare that the decision of 24 November 2004 of the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) misapplies Article 15(2)(a) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark;

2.	order the defendant to pay the costs.

Pleas in law and main arguments:

Applicant for registration of the Community trade mark:	Monte di Massima s.a.s.
Community trade mark applied for:	Figurative mark VALLE DELLA LUNA — Application for registration No 2 029 726 for goods in Class 32 (water, syrups, beers and non-alcoholic drinks)
Owner of the mark or sign cited in the opposition proceedings:	J. M. Höffele Internationale Handelsgesellschaft
Mark or sign cited in the opposition proceedings:	German word mark VALLE DE LA LUNA for goods in Class 33 (wines)
Decision of the Opposition Division:	Opposition refused
Decision of the Board of Appeal	Appeal allowed
Pleas in law:	Misapplication of Article 15(2)(a) of Regulation No 40/94 on the Community trade mark

14.5.2005

Official Journal of the European Union

C 115/27

Action brought on 22 February 2005 by Sergio Rossi SpA against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-97/05)

(2005/C 115/50)

Language of the case: Italian

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 22 February 2005 by Sergio Rossi SpA, represented by Alessandro Ruo, lawyer.

The other party to the proceedings before the Board of Appeal was Marcorossi Srl.

The applicant claims that the Court should:

1.	annul the contested decision which is the subject-matter of the dispute;

2.	order the defendant to pay the costs.

Pleas in law and main arguments:

Applicant for registration of the Community trade mark:	Marcorossi Srl.
Community trade mark applied for:	Word mark MARCOROSSI — Application for registration No 1 405 869 for goods in Class 18 (bags, cases, small leather goods, wallets, holdalls, umbrellas) and 25 (footwear, belts, clothing)
Owner of the mark or sign cited in the opposition proceedings:	Sergio Rossi SpA
Mark or sign cited in the opposition proceedings:	Italian trade mark and international registration MISS ROSSI for goods in Class 25, Italian trade mark SERGIO ROSSI for footwear in Class 25, and Community trade mark SERGIO ROSSI for goods in Classes 3, 18 and 25
Decision of the Opposition Division:	Opposition allowed
Decision of the Board of Appeal:	Appeal allowed and opposition refused
Pleas in law:	Misapplication of Article 8 of Regulation No 40/94 on the Community trade mark, inasmuch as the trade marks which are the subject-matter of the contested decision are to be regarded as incompatible with that provision.

14.5.2005

Official Journal of the European Union

C 115/28

Action brought on 1 March 2005 by BASF Aktiengesellschaft of Ludwigshafen against the Commission of the European Communities

(Case T-101/05)

(2005/C 115/51)

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 1 March 2005 by BASF Aktiengesellschaft of Ludwigshafen, established in Ludwigshafen (Germany), represented by N. Levy and J. Temple Lang, Solicitors and C. Feddersen, lawyer.

The applicant claims that the Court should:

—	annul or substantially reduce the fine imposed on BASF pursuant to the decision;

—	order the Commission to pay BASF's legal and other costs and expenses in relation to this matter.

Pleas in law and main arguments

The applicant contests the fine imposed on it by the Commission's Decision of 9 December 2004 relating to a proceeding under Article 81 EC and Article 53 EEA (Case COMP/E-2/37.533-Choline Chloride), finding that the applicant was involved in a complex of agreements and concerted practices consisting of price fixing, market sharing and agreed actions against competitors in the choline chloride sector in the EEA.

In support of its application, the applicant submits that its rights of defence were infringed in that the Statement of Objections did not clearly state the elements relevant to the calculation of the fine imposed on the applicant by the final decision. The applicant states that in particular the 100 % increase of the fine for deterrence was not fully explained to it in the Statement of Objections.

The applicant also submits that the increase of the fine for deterrence and for size is not permitted under Regulation 17/62 (1), now Regulation 1/2003 (2), or the Fining Guidelines (3), and is furthermore not necessary. According to the applicant, the overall size of a company can only be used to measure the impact of an infringement on the market and not as a basis for an increase of the fine. The applicant also claims that an increase for deterrence should be used with moderation and when there are clear reasons, which was not the case for the applicant.

The applicant furthermore submits that the 50 % increase of its fine for recidivism, based on infringements that happened almost 40 and 20 years ago, is contrary to the principle of legal certainty and the principle of proportionality. The applicant also states that the increase for recidivism is wrongly calculated because the 50 % was not calculated on the starting amount, but on the starting amount already increased for size and deterrence.

The applicant claims that is was also entitled to a greater reduction of its fine under section D of the Leniency Notice (4). The applicant states first of all that, since it was entitled to a reduction for not substantially contesting the facts, the only issue is whether the Commission correctly assessed the applicant's cooperation in other respects of the Leniency Notice. According to the applicant, the Commission, because it lost parts of the case file, made a wrong and incomplete assessment of the applicant's cooperation. According to the applicant, the decision incorrectly describes the content of certain submissions of the applicant, omits other elements of the applicant's cooperation with the investigation and contains inconsistent descriptions of the cooperation. The applicant claims also that it was in any event entitled to a greater reduction of its fine.

Finally, the applicant submits that the Commission erred in finding that there was one continuous infringement and that the disclosure of the amount of the fine to the media prior to the adoption of the decision constitutes an infringement of the Commission's obligation of professional secrecy and its duty of good administration which impeded a proper evaluation and an independent review of the case by the College of Commissioners.

(1) EEC Council: Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty (OJ English special edition: Series I Chapter 1959-1962, p. 87)

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

(3) 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 1998 C 9, p. 3)

(4) Commission Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4)

14.5.2005

Official Journal of the European Union

C 115/29

Action brought on 28 February 2005 by Assembled Investments (Proprietary) Limited against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-105/05)

(2005/C 115/52)

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 28 February 2005 by Assembled Investments (Proprietary) Limited, established in Stellenbosch (South Africa), represented by P. Hagman, lawyer.

Waterford Wedgwood Plc, established in Waterford (Ireland) was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

—	annul the decision of the First Board of Appeal of 15 December 2004 and establish that the applied Community trade mark application No 1 438 860‘WATERFORD STELLENBOSCH’ is not confusingly similar with the Community trade mark registration No 397 521 ‘WATERFORD’;

—	remit the case to OHIM for registration purposes;

—	order the defendant OHIM and the opponent and co-defendant Waterford Wedgwood Plc to pay the applicant's costs.

Pleas in law and main arguments

Applicant for Community trade mark:	Assembled Investments (Propietary) Limited
Community trade mark concerned:	The figurative mark ‘Waterford Stellenbosch’ for goods in class 33 (alcoholic beverages including wines) — application No 1 438 860
Proprietor of mark or sign cited in the opposition proceedings:	Waterford Wedgwood Plc
Trade mark or sign cited in opposition:	The Community word mark ‘WATERFORD’ for goods in classes 3, 8, 11, 21, 24 and 34 (Perfumery products, essential oils; cutlery; lamps; articles of glassware; …) — Community trade mark No 397 521
Decision of the Opposition Division:	Rejection of the opposition
Decision of the Board of Appeal:	Annulment of the contested decision and rejection of the application
Pleas in law:	Infringement of Articles 8(1)(b), 8(5) and 74(2) of Council Regulation No 40/94 in that there is no likelihood of confusion between the marks and that there is no persuasive evidence that the earlier mark would be detrimentally affected or that an unfair advantage would be taken.

14.5.2005

Official Journal of the European Union

C 115/29

Action brought on 22 February 2005 by European Dynamics S.A. against the Commission of the European Communities

(Case T-106/05)

(2005/C 115/53)

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 22 February 2005 by European Dynamics S.A., established in Athens (Greece), represented by N. Kostakopoulos, lawyer.

The applicant claims that the Court should:

—

annul the Commission's decision not to short-list the applicant's application, filed in response to the International Restricted Tender EuropeAid/117579/C/SV/TR for the ‘Technical Assistance to improve the Information and Communication Technology System in the State Institute of Statistics of Turkey — Upgrading the Statistical System of Turkey’ (1) and to short-list other candidates;

—	annul the decision to reject the applicant's request to review its decision communicated to the applicant by the Commission's letter dated 13 December 2004;

—	order the Commission to pay the applicant's legal and other costs and expenses incurred in connection with this application, even if the current application is rejected.

Pleas in law and main arguments

The applicant company filed an application in response to the Commission's International Restricted Tender EuropeAid/117579/C/SV/TR for the ‘Technical Assistance to improve the Information and Communication Technology System in the State Institute of Statistics of Turkey — Upgrading the Statistical System of Turkey’. By the contested decision the applicant's application was not short-listed.

In support of its application to annul the contested decision the applicant contends that the defendant violated Regulation 1488/1996, the Financial Regulation (2) and the regulation applying it, as well as Directive 92/50 (3) by using evaluation criteria, that were not well specified in the call for tenders. According to the applicant, if the Commission intended to proceed to a comparative analysis of the candidates' capacities, as it appears to have done, then it should have noted so in the call for tenders.

The applicant also claims that the defendant committed manifest errors of appreciation in the evaluation of the bid it had submitted. The applicant contests the Commission's assessment of its technical capacity.

The applicant finally submits that the Commission failed to provide adequate reasons for its decision, in violation of Article 253 EC.

(1) OJ 2004/S 187-158886.

(2) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities, OJ L 248, 16/09/2002, p. 1.

(3) Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, OJ L 209, 24/07/1992, p. 1.

14.5.2005

Official Journal of the European Union

C 115/30

Action brought on 22 February 2005 by François Muller against the Court of Auditors of the European Communities

(Case T-107/05)

(2005/C 115/54)

Language of the case: French

An action against the Court of Auditors of the European Communities was brought before the Court of First Instance of the European Communities on 22 February 2005 by François Muller, residing in Strasbourg (France), represented by Georges Vandersanden, Laure Levi and Aurore Finchelstein, lawyers.

The applicant claims that the Court should:

annul the applicant's pension statement of May 2004, with the effect of applying a correction coefficient at the level for the capital of his country of residence or, at the very least, a correction coefficient which would adequately reflect the differences in the cost of living at the place where the applicant is deemed to incur expenditure and therefore complying with the principle of equivalence;

2.	order the Court of Auditors to pay all the costs.

Pleas in law and main arguments

In support of his action, the applicant puts forward pleas and arguments identical to those put forward by the applicants in Case T-35/05.

14.5.2005

Official Journal of the European Union

C 115/30

Action brought on 22 February 2005 by Suzy Frederic-Leemans against the European Economic and Social Committee

(Case T-108/05)

(2005/C 115/55)

Language of the case: French

An action against the European Economic and Social Committee was brought before the Court of First Instance of the European Communities on 22 February 2005 by Suzy Frederic-Leemans, residing in Lahas (France), represented by G. Vandersanden, L. Levi and A. Finchelstein, lawyers.

The applicant claims that the Court should:

annul the applicant's May 2004 pension statement, so as to apply a correction coefficient at the level of the capital of her country of residence or, at least, a correction coefficient which appropriately reflects the differences in the costs of living in the place where the applicant is deemed to incur her expenditure and therefore complying with the principle of equivalence;

2.	order the European Economic and Social Committee to pay all the costs.

Pleas in law and main arguments

The pleas in law and arguments relied upon in this case are similar to those invoked in Case T-35/05 Elisabeth Agne-Dapper and Others v Commission.

14.5.2005

Official Journal of the European Union

C 115/31

Action brought on 4 March 2005 by the Italian Republic against the Commission of the European Communities

(Case T-110/05)

(2005/C 115/56)

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 4 March 2005 by the Italian Republic, represented by Giacomo Aiello, Avvocato dello Stato.

The applicant claims that the Court should:

annul Commission Regulation (EC) No 2102/2004, insofar as it does not lay down exceptional measures to support the market in poultrymeat within the meaning of Article 14 of Regulation (EEC) No 2777/75 with regard to chicks destroyed owing to the fact that breeding is impossible in areas affected by avian influenza and subject to veterinary restrictions on circulation;

2.	order the Commission to pay the costs.

Pleas in law and main arguments

The Government of the Italian Republic has challenged before the Court of First Instance of the European Communities Commission Regulation (EC) No 2102/2004 of 9 December 2004 on certain exceptional market support measures for eggs in Italy, (1) insofar as it does not lay down exceptional measures to support the market in poultrymeat within the meaning of Article 14 of Regulation (EEC) No 2777/75 (2) with regard to chicks destroyed owing to the fact that breeding is impossible in areas affected by avian influenza and subject to veterinary restrictions on circulation.

In support of its claims, the Italian Republic has pleaded:

infringement of the principle of non-discrimination between producers within the Community laid down in the second paragraph of Article 34(2) EC since, exceptional market support measures having been granted to Italy only in respect of eggs, similar measures in respect of poultrymeat were refused, resulting in discrimination against Italian bird producers in relation to those in the Netherlands, thus infringing Article 34(2) of the EC Treaty;

misuse of powers and manifest error of assessment by the Commission which, by refusing to adopt the exceptional market support measures also in respect of one-day-old chicks destroyed owing to the fact that they cannot breed, exceeded the powers conferred on it by the basic regulation on the common organisation of the market in poultrymeat and committed an error in assessing the situation on the Italian bird market and the data on the production structure at its disposal;

infringement and incorrect interpretation of Article 14 of Regulation No 2777/75, since the Commission's unjustified refusal to grant the exceptional market support measures in respect of one-day-old chicks destroyed owing to the fact that breeding is impossible is the result of misinterpretation of Article 14 of Regulation No 2777/75.

Finally, the applicant pleads infringement of the obligation to give reasons for measures.

(1) OJ L 365 of 10.12.2004, p. 10.

(2) OJ L 282 of 01.11.1975, p. 77.

14.5.2005

Official Journal of the European Union

C 115/32

Action brought on 25 February 2005 by UCB SA against the Commission of the European Communities

(Case T-111/05)

(2005/C 115/57)

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 25 February 2005 by UCB SA, Brussels, represented by Jacques Bourgeois, Jean-François Bellis and Martin Favart, lawyers.

The applicant claims that the Court should:

—	annul the Commission Decision of 9 December 2004 in Case COMP/E-2/37.533 relating to a proceeding under Article 81 EC — Choline Chloride;

—	at the very least, annul the fine imposed on UCB by that decision, or substantially reduce the amount thereof;

—	order the Commission to pay the costs.

Pleas in law and main arguments

The decision contested in the present case is the same as that forming the subject-matter of Case T-101/05 BASF v Commission (1). By that decision, the Commission found that the six companies to which the decision was addressed infringed Article 81(1) of the EC Treaty by participating in a series of agreements and concerted practices consisting of price fixing, market sharing and agreed actions against competitors (control of processors) in the choline chloride sector in the European Economic Area. That anti-competitive conduct manifested itself at two different but closely-linked areas, namely world level and European level.

In support of its application, the applicant claims:

—

that the contested decision was wrong to characterise the infringement as a single and continuous infringement, when in reality there must be two separate infringements: a worldwide cartel, from October 1992 to April 1994, and an intra-Community cartel, from March 1994 to September 1998. In the applicant's submission, the Commission's argument would have the effect, if not the object, of avoiding the application of the rules on limitation;

—

the Commission was wrong to impose a fine on the applicant in respect of both the worldwide cartel, when that infringement was already time-barred, and the intra-Community cartel, in the light of the Commission's leniency notices. If the defendant had drawn that distinction, as it should have done, it would necessarily have arrived at the conclusion that no fine must be imposed in this case;

—	in the alternative, the infringement found against the applicant would have been time-barred, in the absence of the information voluntarily supplied by the applicant itself in 1999.

(1) Not yet published in the OJEU.

14.5.2005

Official Journal of the European Union

C 115/32

Action brought on 28 February 2005 by Angel Angelidis against the European Paliament

(Case T-113/05)

(2005/C 115/58)

Language of the case: French

An action against the European Parliament was brought before the Court of First Instance of the European Communities on 28 February 2005 by Angel Angelidis, residing in Luxembourg, represented by Eric Boigelot, lawyer.

The applicant claims that the Court should:

—	annul the decision taken by the Secretary-General of Parliament on 24 March 2004 to reject the candidature of the applicant for the A2 post of Director D (Budgetary Affairs) in the ‘Internal Policies’ DG (Notice of Vacancy No 10069) to which another candidate was appointed;

—	annul the appointment of the other candidate for the post;

—	annul the decision of the appointing authority of 23 November 2004 rejecting the complaint lodged under Article 90(2) of the Staff Regulations against the decision rejecting his candidature and against the decision to appoint another candidate to the post;

—	order compensation to be paid for the non-material damage suffered, assessed on an equitable basis at EUR 5 000 by way of damages, without prejudice to its increase or reduction in the course of proceedings;

—	order the defendant to pay the costs.

Pleas in law and main arguments

In support of his application the applicant relies on a plea of failure to state reasons for the contested decision in breach of Article 25 of the Staff Regulations. He also raises pleas of breach of the notice of vacancy, of Article 29(1) and Article 45 of the Staff Regulations, of the principles of equal treatment and of the right to career advancement and a manifest error of assessment, on the ground that his professional experience, his responsibilities and his management and negotiating skills were superior to those of the candidate selected. Finally the applicant alleges misuse of powers.

14.5.2005

Official Journal of the European Union

C 115/33

Action brought on 28 February 2005 by Joerg Peter Block and Others against the Commission of the European Communities

(Case T-114/05)

(2005/C 115/59)

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 February 2005 by Joerg Peter Block, residing in Sterrebeek (Belgium), and 12 others, represented by Stéphane Rodrigues and Alice Jaune, lawyers.

The applicants claim that the Court should:

—	annul the decisions of the appointing authority rejecting the complaints of the applicants taken at the same time as the decisions of the appointing authority of 1 May 2004 altering the applicants' grades to Grade A8 or Grade B8 as the case may be;

—	annul the salary statements of the applicants implementing the decision of the appointing authority to alter the applicants' grades to Grade A8 or Grade B8 as the case may be, from 1 May 2004;

—	inform the appointing authority of the effects of the annulment of the contested decisions namely, inter alia, the reclassification of the applicants' grades to Grade A9 or Grade B9, as the case may be, with retroactive effect from 1 May 2004;

—	in the alternative, order the Commission to recognise that the applicants are eligible for promotion to Grade A10 or Grade B10, as the case may be, when they are next promoted;

—	order the Commission to make good the damage suffered by the applicants as a result of their not being classified in Grade A9 or Grade B9, as the case may be, from 1 May 2004;

—	order the defendant to bear the costs.

Pleas in law and main arguments

The applicants are all officials of the Commission who were appointed at Grade A7 and B2 before the entry into force of the new Staff Regulations on 1 May 2004. They contest their classification in Grade A*8 and B*8 respectively pursuant to Article 2 of Annex XIII to the Staff Regulations.

In support of their application the applicants submit that the application to them of that provision is unlawful, as it breaches Article 6 of the Staff Regulations, the principles of equivalence of the old and new career structures and of equal treatment, as well as the applicants' legitimate expectations and established rights. The applicants also allege misuse of powers.

14.5.2005

Official Journal of the European Union

C 115/33

Action brought on 28 February 2005 by José Jiménez Martinez against the Commission of the European Communities

(Case T-115/05)

(2005/C 115/60)

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 February 2005 by José Jiménez Martinez, residing in Brussels, represented by Eric Boigelot, lawyer.

The applicant claims that the Court should:

1.	annul the Invalidity Committee's decision of 21 April 2004 refusing the applicant's request of 19 January 2004 to be declared invalid, notified by memo of 27 April 2004,

2.	annul the Invalidity Committee's decision of 22 July 2004 granting a declaration of invalidity, in so far as the effect of the declaration of invalidity is not retroactive to 21 April 2004,

3.	grant the applicant compensation for material and non-material damage assessed on an equitable basis at EUR 222 568, subject to increase in the course of the proceedings,

4.	order the defendant to pay the costs.

Pleas in law and main arguments

The applicant in this case objects to the defendant's decision to grant his declaration of invalidity for three years from 1 September 2004 without providing for retroactive effect to 21 April 2004, the date on which the Invalidity Committee took an initial adverse decision in regard to him.

In support of his claims, the applicant pleads:

—	infringement of Article 7 of Annex II to the Staff Regulations and of the rules relating to the operation of the Invalidity Committee. He maintains in that regard that two of the three doctors comprising the Invalidity Committee had no knowledge either of his illness or of his state of health,

—

in this case, the Committee made a manifest error of assessment regarding the nature of his illness. It is stated in that regard that the Invalidity Committee took no account whatsoever of the existence of an illness different from sleeping disorders, namely the chronic fatigue previously diagnosed,

—	failure to comply with the obligation to state reasons,

—	infringement of Articles 53 and 78 of the Staff Regulations and of Articles 13 to 18 of Annex VIII to those regulations,

—	breach of the principle of good administration and sound management and breach of the duty to have regard for the welfare of officials.

14.5.2005

Official Journal of the European Union

C 115/34

Action brought on 28 February 2005 by Dorian Lacombe against the Council of the European Union

(Case T-116/05)

(2005/C 115/61)

Language of the case: French

An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 28 February 2005 by Dorian Lacombe, residing in Evry (France), represented by Sébastien Orlandi, Xavier Martin, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

1.	order the Council to pay to the applicant an amount corresponding to the total amount of overtime worked in accordance with the statement signed for agreement by his immediate superior and by the Secretary-General of the Council, less the amount already paid,

2.	order the Council to pay to the applicant's social security scheme the employer's contributions provided for by the legislation in force,

3.	order the Council to pay to the applicant the unemployment benefits to which he would have been entitled if the employer's contributions had been paid in due time to his social security scheme,

4.	order the defendant to pay to the applicant default interest calculated at the ECB central rate plus 2 points on all sums which should have been paid under the auxiliary staff contract between the parties.

Pleas in law and main arguments

The applicant was a member of the auxiliary staff at the Council from 1 December 2002 to 31 July 2003. He claims that the Council reduced from 73 to 59.5 days the amount of overtime to which he was entitled for hours worked on Saturdays, Sundays, holidays and days when the offices were closed, without informing him of the reasons. In support of this claim, the applicant pleads infringement of Article 57 of the Conditions of employment of other servants of the European Communities, infringement of Article 56 of the Staff Regulations, infringement of Staff Notice No 88/93 and breach of the duty to state reasons.

The applicant further alleges that, in breach of Article 70 of the Conditions of employment of other servants of the European Communities, the Council did not pay the contributions payable to the Caisse de Sécurité Sociale (French Social Security Fund) of which he was a member. The applicant also claims compensation for the damage which he suffered as a consequence.

14.5.2005

Official Journal of the European Union

C 115/35

Action brought on 7 March 2005 by Reckitt Benckiser N.V. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-118/05)

(2005/C 115/62)

Language of the case: English

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 7 March 2005 by Reckitt Benckiser N.V., established in Hoofddorp (The Netherlands), represented by G.S.P. Vos, lawyer.

The applicant claims that the Court should:

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

—	allow the registration of the Community trade mark application number 2 897 338;

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

Pleas in law and main arguments

Community trade mark concerned:	The three dimensional mark of a rectangular capsule with a black and white wave around a white circle for goods in classes 1 and 3 (Chemical products for industrial purposes; water softeners; bleaching preparations and other substances for laundry use and dish washing; ...) — application No 2 897 338
Decision of the examiner:	Rejection of the trade mark application
Decision of the Board of Appeal:	Dismissal of the appeal
Pleas in law:	Wrongful application of Article 7(1)(c) of Council Regulation No 40/94, Violation of Article 7(1)(b) and infringement of the duty to state sufficient reasons

14.5.2005

Official Journal of the European Union

C 115/35

Action brought on 7 March 2005 by Reckitt Benckiser N.V. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-119/05)

(2005/C 115/63)

Language of the case: English

The applicant claims that the Court should:

—	annul the decision adopted on 17 December 2004 by the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs)in case R 43/2004-2

—	allow registration of the Community trade mark 2 778 488

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

Pleas in law and main arguments

Community trade mark concerned:

A three-dimensional mark of a transparent rectangular container with rounded angles on the underside and sphere like on the upper side, containing speckled blue gel and a large white ball, for goods in class 1 (water softeners etc.) and 3 (laundry preparations etc.) — application No 2 778 488

Decision of the examiner:

Refusal of registration

Decision of the Board of Appeal:

Dismissal of the appeal

Pleas in law:

—	Misapplication of Article 7(1)(b) of Regulation (EC) No 40/94

—	Misapplication of Article 7(1)(c) of Regulation (EC) No 40/94

14.5.2005

Official Journal of the European Union

C 115/36

Action brought on 8 March 2005 by Andreas Knaul and Others against the Commission of the European Communities

(Case T-120/05)

(2005/C 115/64)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 8 March 2005 by Knaul Andreas, residing in Riga (Latvia), Márquez Camacho Antonio, residing in Brussels, Reina Cantalejo María Teresa, residing in Brussels and Tejada Fernández Miguel, residing in Zaventem (Belgium), represented by S. Rodrigues and A. Jaume, lawyers, with an address for service in Luxembourg.

The applicants claim that the Court should:

1.	annul the Appointing Authority's decisions rejecting the applicants' complaints, taken together with the Appointing Authority's decisions of 1 May 2004 changing the applicants' grades to Grade A8 or B8;

2.	annul the applicants' pay slips implementing the Appointing Authority's decision to change the applicants' grades to Grade A8 or B8 from 1 May 2004;

3.	invite the Commission to recognise the applicants as being eligible for promotion to Grade A10 and B10 on their next promotion;

4.	order the Commission to make good the loss suffered by the applicants as a result of their not having been placed in Grade A9 or B9 from 1 May 2004;

5.	order the defendant to pay all the costs.

Pleas in law and main arguments

The pleas in law and main arguments are those relied upon in case T-114/05 Joerg Peter Block and Others v Commission.

14.5.2005

Official Journal of the European Union

C 115/36

Action brought on 11 March 2005 by Olivier Chassagne against the Commission of the European Communities

(Case T-123/05)

(2005/C 115/65)

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 11 March 2005 by Olivier Chassagne, residing in Brussels, represented by Stéphane Rodrigues and Yola Minatchy, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

1.	annul the appointing authority's decision of 9 December 2004 responding to the applicant's complaint of 28 May 2004 and require the appointing authority to take whatever action is dictated by that annulment;

rule that any unjustified and objectively unjustifiable discrimination based on whether or not the place of origin and/or place of employment belongs, in the geographical sense, to the continent of Europe is unlawful and accordingly declare that Article 8(4) of Annex VII to the old Staff Regulations is unlawful;

recall, irrespective of the foregoing, that Réunion is an integral part of the Community under Article 299(2) of the EC Treaty and is also subject, through the accession of its Member State, to the EAEC Treaty and the Treaty on European Union and point out in that regard that European officials originating from that territory are entitled to equal treatment vis-à-vis those originating from a European territory, in the geographical sense, of a Member State;

4.	award the applicant EUR 1 as token compensation for the non-material damage suffered and EUR 7 200 to compensate for the financial damage suffered.

5.	order the defendant to pay the costs.

Pleas in law and main arguments

The applicant contests the Commission's decision not to acknowledge his entitlement, as an official originating from a French Overseas Department, to be covered by Article 8(1) to (3) of Annex VII to the Staff Regulations in the version in force before 1 May 2004.

In support of his action, the applicant pleads unlawfulness of the legal basis of the contested decision, namely Article 8(4) of Annex VII to the old Staff Regulations of Officials. According to the applicant, that provision is invalidated by the absence of a statement of reasons, is discriminatory and infringes Article 21(1) of the European Charter of fundamental rights of the European Union.

The applicant also alleges breach of the obligation to state reasons and breach of a number of rules and general principles of Community law, such as the duty to have regard to the welfare of officials, as well as manifest error of assessment, breach of the principle of equal treatment and breach of the principle of good administration

14.5.2005

Official Journal of the European Union

C 115/37

Action brought on 18 March 2005 by Umwelt- und Ingenieurtechnik GmbH Dresden against the Commission of the European Communities

(Case T-125/05)

(2005/C 115/66)

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 March 2005 by Umwelt- und Ingenieurtechnik GmbH Dresden, Dresden (Germany), represented by H. Robl, lawyer.

The applicant claims that the Court should:

—	annul the decision of 23 December 2004 refusing to award a contract to the applicant;

—	annul the decision of 23 December 2004 awarding a contract to All Trade S.r.l;

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

Pleas in law and main arguments

The applicant challenges the decision of the Commission of 23 December 2004 not to award the applicant Public Contract No AIDCO/A6/FP/co/2004/D/45370, Contract No 90-127 in the tender procedure 'Plan Improvement Project for South Ukraine NPP,' concerning a measure to introduce an intelligent control system for water quality in the nuclear power station in South Ukraine. The applicant also challenges the simultaneous decision to award this contract to the competitor All Trade S.r.l.

The applicant argues that the Commission:

—	erroneously assessed that the applicant's tender did not comply with point 2.2.6 of the technical specification, although all of the services offered by the applicant fully satisfied the specification and this was confirmed by references,

—	erroneously stated that the applicant did not comply with points 2.3.1 and 2.3.4 of the technical specification due to insufficient explanations and information, although the applicant's explanations were both extensive and exhaustive, and

—	breached the duty to provide clarification and exceeded its discretion.

The applicant contends further that in assessing the price, the Commission incorrectly, and in breach of the requirements of paragraph 1.3 of the instructions to tenders based its decision solely on the basic tender price and thus, in spite of their relevance, the pricing of spare parts and maintenance costs were not taken into consideration.

Finally, the applicant submits that the competitor All Trade S.r.l. does not provide any guarantee, either by its expertise or financial standing or by its technical experience, that it will successfully carry out the project in question.

14.5.2005

Official Journal of the European Union

C 115/38

Action brought on 24 March 2005 by Lootus Teine Osaühing against the Council of the European Union

(Case T-127/05)

(2005/C 115/67)

Language of the case: English

An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 24 March 2005 by Lootus Teine Osaühing, established in Tartu (Estonia), represented by T. Sild and K. Martin, lawyers.

The applicant claims that the Court should:

—	annul the annex to Council Regulation (EC) No 2269/2004 of 20 December 2004 amending Regulations (EC) Nos 2340/2002 and 2347/2002 as concerns fishing opportunities for deep sea species for the new Member States which acceded in 2004 (1), as regards fishing opportunities allocated to Estonia;

—	annul Part 2 of the Annex to Council Regulation (EC) No 2270/2004 (2) of 22 December 2004 fixing for 2005 and 2006 the fishing opportunities for Community fishing vessels for certain deep-sea fish stocks, as regards fishing opportunities allocated to Estonia;

—	order the defendant to pay the costs.

Pleas in law and main arguments

The applicant is an Estonian fishing company which practises deep sea fishing in the area of the North East Atlantic Fisheries Convention. Estonia was a party to that Convention prior to its accession to the European Union. Article 6(9) of the Act of Accession of Estonia and the other new Member States to the European Union (3) provides that as from the date of accession, fisheries agreements concluded by the new Member States shall be managed by the Community and that the rights and obligations resulting for the new Member States from those agreements shall not be affected during the period in which the provisions of those agreements are provisionally maintained. It is in this context that the contested measures were issued, allocating Estonia fishing opportunities, measured in metric tons of allowable catch of certain stocks in 2004, 2005 and 2006.

According to the applicant these allocations constitute only a fraction of what Estonia legally harvested before accession. On this basis the applicant contends that the contested measures violated Article 6(9) of the Act of Accession as well as the principle of proportionality, and should therefore be annulled.

(1) OJ L 396, 31.12.2004, p. 1.

(2) OJ L 396, 31.12.2004, p. 4.

(3) OJ L 236, 23.09.2003.

14.5.2005

Official Journal of the European Union

C 115/38

Action brought on 23 February 2005 by Wal-Mart Stores Inc. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-129/05)

(2005/C 115/68)

Language of the case to be determined pursuant to Article 131(2) of the Rules of Procedure — language in which the application was submitted: Spanish

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 23 February 2005 by Wal-Mart Stores Inc., represented by Fernand de Visscher, Emmanuel Cornu, Eric de Gryse, Donatienne Moreau, Jorge Grau Mora, Alejandro Angulo Labora, Maite Ferrándiz Avendaño, María Baylos Morales and Antonio Velásquez Ibáñez, lawyers.

Alejandro Sánchez Villar was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

—	annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 17 December 2004 in Case R 629/2004-2 partially refusing Community trade mark application No 1997600 ‘WAL-MART’;

—	order OHIM to pay the costs.

Pleas in law and main arguments

Applicant for Community trade mark:	The applicant
Community trade mark sought:	‘WAL-MART’ — Application No 1 997 600 for goods and services in all classes except Class 35
Proprietor of mark or sign cited in the opposition proceedings:	Alejandro Sánchez Villar
Mark or sign cited in opposition:	Spanish ‘WAL-MART’ (No 1 732 588) for goods in Class 7 (machinery for gardening)
Decision of the Opposition Division:	Opposition partially upheld for the following products: Machines and machine tools, motors and engines (except for land vehicles), machine coupling and transmission components (except for land vehicles), agricultural implements other than hand operated' and dismissed the opposition for the remainder of the goods and services applied for.
Decision of the Board of Appeal:	Application dismissed
Pleas in law:	Infringement of Article 43(2) and Article 8(1)(b) of Regulation (EC) No 40/94

14.5.2005

Official Journal of the European Union

C 115/39

Action brought on 11 April 2005 by the United Kingdom against the Commission of the European Communities

(Case T-143/05)

(2005/C 115/69)

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 11 April 2005 by the United Kingdom, represented by C. Jackson, agent, assisted by M. Hoskins, Barrister.

The applicant claims that the Court should:

—	annul the refusal of the Commission contained in its letter of 1 February 2005 to consider the amended national allocation plan submitted by the United Kingdom on 10 November 2004; and;

—	order the Commission to pay the United Kingdom's costs of this action.

Pleas in law and main arguments

On 30 April 2004, the United Kingdom notified a provisional national allocation plan to the Commission pursuant to Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (1). A number of ongoing activities were identified in the plan, which according to the United Kingdom had a provisional character.

On 7 July 2004, the Commission adopted Decision C(2004)2515/4 final concerning the submitted plan identifying certain incompatibilities with Annex III of the Directive.

Following the completion of the activities identified in the provisional national allocation plan, the United Kingdom notified the Commission on 10 November 2004 that it wished to amend the provisional national allocation plan to take account of the results of this work.

By letter of 1 February 2005 the Commission informed the United Kingdom that its request to amend its national allocation plan was inadmissible as an increase of the total quantity of allowances of 19,8 million tonnes did not aim at addressing the incompatibilities identified in the Commission's Decision.

The United Kingdom challenges this refusal and submits that the Commission's letter of 1 February 2005 is a reviewable act under Article 230 EC as it is intended to have legal effects since the Commission has adopted a definitive position as to whether the United Kingdom is entitled to make amendments to the provisional national allocation plan.

The United Kingdom further alleges that the Commission's letter of 1 February 2005 is wrong as a matter of law since:

—	Articles 9(1), 9(3) and 11(1) of the Directive allow for amendments to be made to the total quantity of allowances that a Member State will allocate after the adoption of a decision by the Commission under Article 9(3) of the Directive,

—	Article 3(3) of the Commission's Decision C(2004)2515/4 final envisages that amendments may be made to deal with matters other than the incompatibilities identified in the Decision, and

—	the United Kingdom cannot fully comply with its obligations under Article 11(1) of the Directive until the Commission has considered the amended national allocation plan in accordance with Article 9(3) of the Directive.

(1) OJ L 275 of 25 October 2003, p. 32.

14.5.2005

Official Journal of the European Union

C 115/42

(2005/C 115/78)

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

Past publications

These texts are available on:

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

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

		ISSN 1725-2423
Official Journal of the European Union		C 115

English edition	Information and Notices	Volume 48 14 May 2005

	III Notices
2005/C 115/8	Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 106, 30.4.2005	42

Notice No	Contents	page
	I Information
	Court of Justice
	COURT OF JUSTICE
2005/C 115/1	Judgment of the Court (Third Chamber) of 3 March 2005 in Case C-428/02 (Reference for a preliminary ruling from the Vestre Landsret) Fonden Marselisborg Lystbådehavn v Skatteministeriet, and Skatteministeriet v Fonden Marselisborg Lystbådehavn (Sixth VAT Directive — Article 13B(b) — Exemptions — Leasing of immovable property — Letting of premises and sites for parking vehicles — Mooring berths for boats — Land storage sites for boats)	1

2005/C 115/2	Judgment of the Court (Second Chamber) of 10 March 2005 in Case C-22/03 Reference for a preliminary ruling from the Rechtbank te Rotterdam: Optiver BV and Others v Stichting Autoriteit Financiële Markten (Directive 69/335/EEC — Indirect taxes on the raising of capital — Duty on the gross profits of securities intermediaries)	1

2005/C 115/3	Judgment of the Court (Third Chamber) of 3 March 2005 in Case C-32/03 (reference for a preliminary ruling from the Højesteret): I/S Fini H v Skatteministeriet (Sixth VAT Directive — Status of taxable person — Right to deduct — Winding up — Direct and immediate link — Transactions forming part of the economic activity as a whole)	2

2005/C 115/4	Judgment of the Court (First Chamber) of 10 March 2005 in Case C-33/03: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Failure of a Member State to fulfil its obligations — Articles 17 and 18 of the Sixth VAT Directive — Provision of national law under which an employer may deduct VAT on supplies of fuel to his employees when reimbursing their fuel costs)	2

2005/C 115/5	Judgment of the Court (Third Chamber) of 10 March 2005 in Joined Cases C-96/03 and C-97/03 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven): A. Tempelman v Directeur van de Rijksdienst voor de keuring van Vee en Vlees (Agriculture — Control of foot-and-mouth disease — Protective measures adopted in addition to the measures provided for in Directive 85/511/EEC — Powers of the Member States)	3

2005/C 115/6	Judgment of the Court (First Chamber) of 17 February 2005 in Case C-215/03 (reference for a preliminary ruling from the Rechtbank te 's-Gravenhage): Salah Oulane v Minister voor Vreemdelingenzaken en Integratie (Free movement of persons — Right of entry and residence for nationals of Member States — Requirement to present an identity card or a passport — Pre-condition for recognition of right of residence — Penalty — Detention order for the purpose of deportation)	3

2005/C 115/7	Judgment of the Court (Sixth Chamber) of 10 March 2005 in Case C-235/03 Reference for a preliminary ruling from the Juzgado de Primera Instancia No 35 Barcelona: QDQ Media SA v Alejandro Omedas Lecha (Directive 2000/35/EC — Definition of recovery costs — Expenses of abogado or procurador in judicial proceedings where use of those legal practitioners is not required — Impossible to include in the costs on the basis of national law — Impossible to rely on the directive against an individual)	4

2005/C 115/8	Judgment of the Court (First Chamber) of 10 March 2005 in Case C-336/03 Reference for a preliminary ruling from the High Court of Justice of England and Wales, Chancery Division: easyCar (UK) Ltd v Office of Fair Trading (Protection of consumers in respect of distance contracts — Directive 97/7/EC — Contracts for the provision of transport services — Meaning — Contracts for car hire)	4

2005/C 115/9	Judgment of the Court (First Chamber) of 10 March 2005 in Case C-342/03: Kingdom of Spain v Council of the European Union (Common commercial policy — Canned tuna originating in Thailand and the Philippines — Mediation within the WTO — Regulation (EC) No 975/2003 — Tariff quota)	5

2005/C 115/0	Judgment of the Court of Justice (Fifth Chamber) of 10 March 2005 in Case C-449/03: Commission of the European Communities against French Republic (Failure of a member State to fulfil obligations — Management of waste — Waste tip at Saint-Laurent du Maroni — Directives 75/442/EE and 91/156/EEC)	5

2005/C 115/1	Judgment of the Court (First Chamber) of 3 March 2005 in Case C-472/03 (reference for a preliminary ruling from the Hoge Raad der Nederlanden): Staatssecretaris van Financiën v Arthur Andersen & Co. Accountants c.s. (Sixth VAT directive — Article 13B(a) — Exemption of services related to insurance transactions by insurance brokers and insurance agents — Life assurance — Back office activities)	6

2005/C 115/2	Judgment of the Court (First Chamber) of 10 March 2005 in Case C-491/03 Reference for a preliminary ruling from the Hessischer Verwaltungsgerichtshof: Ottmar Hermann v Stadt Frankfurt am Main (Indirect tax — Directive 92/12/EEC — Local tax on the supply of alcoholic beverages for immediate consumption on the premises)	6

2005/C 115/3	Judgment of the Court (Fifth Chamber) of 10 March 2005 in Case C-531/03: Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Directive 97/11/EC — Assessment of the effects of certain public and private projects on the environment — Road construction projects in certain Länder)	7

2005/C 115/4	Judgment of the Court (Third Chamber) of 10 March 2005 in Case C-39/04 (reference for a preliminary ruling from the Tribunal administratif, Dijon): Laboratoires Fournier SA v Direction des vérifications nationales et internationales (Restrictions on the freedom to provide services — Tax legislation — Corporation tax — Tax credit for research)	7

2005/C 115/5	Judgment of the Court (Fifth Chamber) of 10 March 2005 in Case C-236/04: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directives 2002/19/EC, 2002/20/EC, 2002/21/EC and 2002/22/EC — Electronic communications networks and services — Failure to transpose within the prescribed period)	7

2005/C 115/6	Judgment of the Court (Fifth Chamber) of 10 March 2005 in Case C-240/04: Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Directives 2002/19/EC, 2002/20/EC, 2002/21/EC and 2002/22/EC — Electronic communications networks and services — Failure to transpose within the prescribed period)	8

2005/C 115/7	Order of the Court (Second Chamber) of 17 February 2005 in Case C-250/03: Reference for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia in Giorgio Emanuele Mauri v Ministero della Giustizia, Commissione per gli esami di avvocato presso la Corte d'appello di Milano (Article 104(3) of the Rules of Procedure — Access to the profession of advocate — Rules on the examination for authorisation to practise as an advocate)	8

2005/C 115/8	Case C-64/05 P: Appeal brought on 14 February 2005 by Kingdom of Sweden against the judgment delivered on 30 November 2004 by the Fifth Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-168/02 between IFAW Internationaler Tierschutz-Fonds gGmbH, supported by Kingdom of the Netherlands, Kingdom of Sweden and by Kingdom of Denmark and Commission of the European Communities, supported by United Kingdom of Great Britain and Northern Ireland	9

2005/C 115/9	Case C-91/05: Action brought on 21 February 2005 by the European Commission against the Council of the European Union	10

2005/C 115/0	Case C-104/05 P: Appeal brought on 2 March 2005 (faxed on 28 February 2005) by El Corte Inglés against the judgment delivered on 13 December 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-8/03 between El Corte Inglés SA and the Office for Harmonisation in the Internal Market (trade marks and designs) (OHIM)	10

2005/C 115/1	Case C-106/05: Reference for a preliminary ruling from the Bundesfinanzhof by order of that court of 25 November 2004 in L. u. P. GmbH v Finanzamt Bochum-Mitte	11

2005/C 115/2	Case C-108/05: Reference for a preliminary ruling from the Gerechtshof te 's-Gravenhage by order of that court of 27 January 2005 in Bovemij Verzekeringen N.V. v Benelux-Merkenbureau	12

2005/C 115/3	Case C-110/05: Action brought on 4 March 2005 by the Commission of the European Communities against the Italian Republic	12

2005/C 115/4	Case C-113/05 P: Appeal brought on 4 March 2005 by European Federation for Cosmetic Ingredients (EFfCI) against the order made on 10 December 2004 by the Third Chamber of the Court of First Instance of the European Communities in Case T-196/03 between European Federation for Cosmetic Ingredients (EFfCI) and European Parliament and Council of the European Union	13

2005/C 115/5	Case C-114/05: Reference for a preliminary ruling from the Conseil d'État (France), acting in its judicial capacity, by order of that court of 10 January 2005 in Ministre de l'Économie, des Finances and de l'Industrie v Gillan Beach	14

2005/C 115/6	Case C-116/05: Reference for a preliminary ruling from the Tribunal de commerce de Nancy by judgment of that court of 14 February 2005 in Ets Dhumeaux et Cie SA — Société d'Etudes et de Commerce SEC v ALBV SA, ALBV SA v Tragex Gel — Institut d'expertise vétérinaire IEV, ALBV SA v Cigma International SA and ALBV SA v Mr Gustin in his capacity as administrator of Tragex Gel	14

2005/C 115/7	Case C-122/05: Action brought on 14 March 2005 by the Commission of the European Communities against the Italian Republic	15

2005/C 115/8	Case C-123/05: Action brought on 15 March 2005 by the Commission of the European Communities against the Italian Republic	15

2005/C 115/9	Case C-136/05: Action brought on 22 March 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg	16

2005/C 115/0	Case C-139/05: Action brought on 29 March 2005 by Kingdom of Spain against the Council of the European Union	17

2005/C 115/1	Case C-141/05: Action brought on 29 March 2005 by Kingdom of Spain against the Council of the European Union	17

2005/C 115/2	Case C-160/05: Action brought on 6 April 2005 by the Commission of the European Communities against the French Republic	17

2005/C 115/3	Case C-164/05: Action brought on 8 April 2005 by the Commission of the European Communities against the French Republic	18

2005/C 115/4	Removal from the register of Joined Cases C-426/03, C-427/03, C-428/03 and C-429/03	18

	COURT OF FIRST INSTANCE
2005/C 115/5	Judgment of the Court of First Instance of 9 March 2005 in Case T-254/02, L v Commission of the European Communities (Officials — Duty to provide assistance — Article 24 of the Staff Regulations — Scope — Harassment — Claim for compensation — Occupational illness)	19

2005/C 115/6	Judgment of the Court of First Instance of 8 March 2005 in Case T-275/02 D v European Investment Bank (EIB) (Agents of the EIB — Action for annulment — Admissibility — Extension of the probationary period — Termination of contract — Conditions — Action for compensation)	19

2005/C 115/7	Judgment of the Court of First Instance of 8 March 2005 in Case T-32/03 Leder & Schuh AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Earlier national word mark Schuhpark — Application for Community word mark JELLO SCHUHPARK — Relative ground for refusal — Partial refusal to register — Article 8(1)(b) of Regulation (EC) No 40/94)	20

2005/C 115/8	Judgment of the Court of First Instance of 9 March 2005 in Case T-33/03 Osotspa Co. Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Earlier national and Community figurative SHARK marks — Application for Community word mark Hai — Absolute ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)	20

2005/C 115/9	Judgment of the Court of First Instance of 8 March 2005 in Case T-277/03 Dionysia Vlachaki, spouse of Petros Eleftheriadis v Commission of the European Communities (Former auxiliary staff — Recovery of remuneration unduly paid after expiry of the contract — Interest on arrears — Action for annulment — Statement of reasons — Force majeure)	21

2005/C 115/0	Order of the Court of First Instance of 10 January 2005 in Case T-357/03 Bruno Gollnisch and Others v European Parliament (Decision of the Bureau of the European Parliament — Action for annulment — Inadmissibility)	21

2005/C 115/1	Order of the Court of First Instance of 10 January 2005 in Case T-209/04 Kingdom of Spain v Commission of the European Communities (Fisheries policy — Detailed rules and arrangements regarding Community structural assistance in the fisheries sector — Request for authorisation for the establishment of joint enterprises — Failure by the Commission to take a decision — Action for failure to act — Action manifestly unfounded)	21

2005/C 115/2	Case T-507/04: Action brought on 30 December 2004 by Arturo Ruiz Bravo-Villasante against the Commission of the European Communities	22

2005/C 115/3	Case T-32/05: Action brought on 19 January 2005 by Claire Staelen against European Parliament	22

2005/C 115/4	Case T-44/05: Action brought on 4 February 2005 by SP Entertainment Development GmbH against the Commission of the European Communities	23

2005/C 115/5	Case T-72/05: Action brought on 17 February 2005 by Deutsche Telekom AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)	23

2005/C 115/6	Case T-90/05: Action brought on 24 February 2005 by Omega, S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)	24

2005/C 115/7	Case T-91/05: Action brought on 28 February 2005 by Sinara Handel GmbH against the Council of the European Union and the Commission of the European Communities	25

2005/C 115/8	Case T-92/05: Action brought on 25 February 2005 by Movingpeople.net International B.V. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)	26

2005/C 115/9	Case T-96/05: Action brought on 16 February 2005 by Monte di Massima s.a.s. di Pruneddu Leonardo & C. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)	26

2005/C 115/0	Case T-97/05: Action brought on 22 February 2005 by Sergio Rossi SpA against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)	27

2005/C 115/1	Case T-101/05: Action brought on 1 March 2005 by BASF Aktiengesellschaft of Ludwigshafen against the Commission of the European Communities	28

2005/C 115/2	Case T-105/05: Action brought on 28 February 2005 by Assembled Investments (Proprietary) Limited against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)	29

2005/C 115/3	Case T-106/05: Action brought on 22 February 2005 by European Dynamics S.A. against the Commission of the European Communities	29

2005/C 115/4	Case T-107/05: Action brought on 22 February 2005 by François Muller against the Court of Auditors of the European Communities	30

2005/C 115/5	Case T-108/05: Action brought on 22 February 2005 by Suzy Frederic-Leemans against the European Economic and Social Committee	30

2005/C 115/6	Case T-110/05: Action brought on 4 March 2005 by the Italian Republic against the Commission of the European Communities	31

2005/C 115/7	Case T-111/05: Action brought on 25 February 2005 by UCB SA against the Commission of the European Communities	32

2005/C 115/8	Case T-113/05: Action brought on 28 February 2005 by Angel Angelidis against the European Paliament	32

2005/C 115/9	Case T-114/05: Action brought on 28 February 2005 by Joerg Peter Block and Others against the Commission of the European Communities	33

2005/C 115/0	Case T-115/05: Action brought on 28 February 2005 by José Jiménez Martinez against the Commission of the European Communities	33

2005/C 115/1	Case T-116/05: Action brought on 28 February 2005 by Dorian Lacombe against the Council of the European Union	34

2005/C 115/2	Case T-118/05: Action brought on 7 March 2005 by Reckitt Benckiser N.V. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)	35

2005/C 115/3	Case T-119/05: Action brought on 7 March 2005 by Reckitt Benckiser N.V. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)	35

2005/C 115/4	Case T-120/05: Action brought on 8 March 2005 by Andreas Knaul and Others against the Commission of the European Communities	36

2005/C 115/5	Case T-123/05: Action brought on 11 March 2005 by Olivier Chassagne against the Commission of the European Communities	36

2005/C 115/6	Case T-125/05: Action brought on 18 March 2005 by Umwelt- und Ingenieurtechnik GmbH Dresden against the Commission of the European Communities	37

2005/C 115/7	Case T-127/05: Action brought on 24 March 2005 by Lootus Teine Osaühing against the Council of the European Union	38

2005/C 115/8	Case T-129/05: Action brought on 23 February 2005 by Wal-Mart Stores Inc. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)	38

2005/C 115/9	Case T-143/05: Action brought on 11 April 2005 by the United Kingdom against the Commission of the European Communities	39

2005/C 115/0	Removal from the Register of Case T-289/99	40

2005/C 115/1	Removal from the Register of Case T-122/03	40

2005/C 115/2	Removal from the Register of Case T-197/03	40

2005/C 115/3	Removal from the Register of Case T-412/03	40

2005/C 115/4	Removal from the Register of Case T-151/04	41

2005/C 115/5	Removal from the Register of Case T-159/04	41

2005/C 115/6	Removal from the Register of Case T-372/04	41

2005/C 115/7	Removal from the Register of Case T-391/04	41