20.8.2005

Official Journal of the European Union

C 205/1

JUDGMENT OF THE COURT

(Grand Chamber)

of 28 June 2005

in Joined Cases C-189/02 P, C-202/02 P, C 205/02 P to C 208/02 P and C 213/02 P: Dansk Rørindustri A/S and Others v Commission of the European Communities (1)

(Appeal - Competition - District heating pipes (pre-insulated pipes) - Article 85(1) of the EC Treaty (now Article 81(1) EC) - Cartel - Boycott - Fines - Guidelines on the method of setting fines - Non-retroactivity - Legitimate expectations - Lawfulness - Leniency notice - Obligation to state reasons)

(2005/C 205/01)

Languages of the case: Danish, German and English

In Joined Cases C-189/02 P, C-202/02 P, C 205/02 P to C 208/02 P and C 213/02 P: appeals under Article 49 of the EC Statute of the Court of Justice, lodged on 17 May 2002 in the first case, 29 May 2002 in the second, 3 June 2002 in the next four cases and 5 June 2002 in the last case — Dansk Rørindustri A/S, established in Fredericia (Denmark) (lawyers: K. Dyekjær-Hansen and K. Høegh) (C-189/02 P), Isoplus Fernwärmetechnik Vertriebsgesellschaft mbH, established in Rosenheim (Germany), Isoplus Fernwärmetechnik Gesellschaft mbH), established in Hohenberg (Austria), Isoplus Fernwärmetechnik GmbH, established in Sondershausen (Germany) (lawyer: P. Krömer) (C-202/02 P), KE KELIT Kunststoffwerk GmbH, established in Linz (Austria) (lawyer: W. Löbl), LR af 1998 A/S, formerly Løgstør Rør A/S, established in Løgstør (Denmark) (lawyer: D. Waelbroeck and H. Peytz) (C-206/02 P), Brugg Rohrsysteme GmbH, established in Wunstorf (Germany) (lawyers: T. Jestaedt, H.-C. Salger and M. Sura) (C-207/02 P), LR af 1998 (Deutschland) GmbH, formerly Lögstör Rör (Deutschland) GmbH, established in Fulda (Germany) (lawyer: H.-J. Hellmann) (C-208/02 P), ABB Asea Brown Boveri Ltd, established in Zurich (Switzerland) (lawyers: A. Weitbrecht, J. Ruiz Calzado and M. Bay) (C-213/02 P), the other parties to the proceedings being: Commission of the European Communities (Agents: W. Mölls, P. Oliver and H. Støvlbæk, assisted by A. Böhlke (C 189/02 P, C-202/02 P, C-205/02 P and C 208/02 P) and R. Thompson QC (C 206/02 P and C-213/02 P)), HFB Holding für Fernwärmetechnik Beteiligungsgesellschaft mbH & Co. KG, HFB Holding für Fernwärmetechnik Beteiligungsgesellschaft mbH Verwaltungsgesellschaft (lawyer: P. Krömer), (C-202/02 P) — the Court (Grand Chamber), composed of V. Skouris, President of the Chamber, P. Jann, C.W.A. Timmermans (Rapporteur) and R. Silva de Lapuerta, Presidents of Chamber, C. Gulmann, R. Schintgen, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues, Judges; A. Tizzano, Advocate General; H. von Holstein, Deputy Registrar, and M.-F. Contet, Principal Administrator, for the, Registrar, gave a judgment on 28 June 2005, in which it:

1.	Joins Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P for the purposes of the judgment;

2.	Dismisses the appeals;

Orders Dansk Rørindustri A/S, Isoplus Fernwärmetechnik Vertriebsgesellschaft mbH, Isoplus Fernwärmetechnik Gesellschaft mbH, Isoplus Fernwärmetechnik GmbH, KE KELIT Kunststoffwerk GmbH, LR af 1998 A/S, Brugg Rohrsysteme GmbH, LR af 1998 (Deutschland) GmbH and ABB Asea Brown Boveri Ltd to pay the costs.

(1) OJ C 71 of 20.03.2004.

20.8.2005

Official Journal of the European Union

C 205/2

JUDGMENT OF THE COURT

(Fifth Chamber)

of 30 June 2005

in Case C-165/03 (Reference for a preliminary ruling from Landgericht Stuttgart): Mathias Längst, interested parties SABU Schuh & Marketing GmbH and Others (1)

(Directive 69/335/EEC - Indirect taxes on the raising of capital - Notary's charges - Notary employed as a civil servant - Payment to the State of a fixed portion of the charges)

(2005/C 205/02)

Language of the case: German

In Case C-165/03: reference for a preliminary ruling under Article 234 EC from the Landgericht Stuttgart (Germany), made by decision of 7 April 2003, received at the Court on 10 April 2003, in the proceedings Mathias Längst, interested parties: SABU Schuh & Marketing GmbH, Präsident des Landgerichts Stuttgart, Bezirksrevisor des Landgerichts Stuttgart, the Court: (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, R. Schintgen (Rapporteur) and J. Makarczyk, Judges; A. Tizzano, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, gave a judgment on 30 June 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, as amended by Council Directive 85/303/EEC of 10 June 1985, must be interpreted as meaning that the charges of a notary employed as a civil servant for the drawing up of a notarially attested act recording a transaction covered by that directive constitute taxes for the purposes of that directive where, under the relevant national legislation, notaries authorised to practise are not all civil servants and are themselves owed the charges in question, and, in addition, those notaries who are employed as civil servants are required to remit a portion of those charges to the public authority which uses that revenue for the financing of its official business.

(1) OJ C 213 of 06.09.2003

20.8.2005

Official Journal of the European Union

C 205/2

JUDGMENT OF THE COURT

(Second Chamber)

of 30 June 2005

in Case C-295/03 P: Alessandrini Srl and Others v Commission of the European Communities (1)

(Appeal - Bananas - Third-country imports - Regulation (EC) No 2362/98 - Import licences for bananas from ACP States - Measures under Article 20(d) of Regulation (EEC) No 404/93 - Non-contractual liability of the Community)

(2005/C 205/04)

Language of the case: Italian

In Case C-295/03 P, Alessandrini Srl, established in Treviso (Italy), Anello Gino di Anello Luigi & C. Snc, established in Brescia (Italy), Arpigi SpA, established in Padua (Italy), Bestfruit Srl, established in Milan (Italy), Co-Frutta SpA, established in Padua, Co-Frutta Soc. coop. arl, established in Padua, Dal Bello Sife Srl, established in Padua, Frigofrutta Srl, established in Palermo (Italy), Garletti Snc, established in Bergamo (Italy), London Fruit Ltd, established in London (United Kingdom) (Lawyers: W. Viscardini Donà and G. Donà), the other party to the proceedings being the Commission of the European Communities (Agents: C. Cattabriga and L. Visaggio, and A. Dal Ferro, lawyer) — appeal under Article 56 of the Statute of the Court of Justice, brought on 2 July 2003 — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, C. Gulmann, R. Schintgen (Rapporteur), G. Arestis and J. Klučka, Judges; D. Ruiz-Jarabo Colomer, Advocate General: M. Ferreira, Principal Administrator, for Registrar, gave a judgment on 30 June 2005, in which it:

1.	Sets aside the judgment of the Court of First Instance of the European Communities of 10 April 2003 in Joined Cases T-93/00 and T-46/01 Alessandrini and Others v Commission;

2.	Dismisses the applications brought before the Court of First Instance of the European Communities in Cases T-93/00 and T-46/01;

3.	Orders Alessandrini Srl, Anello Gino di Anello Luigi & C. Snc, Arpigi SpA, Bestfruit Srl, Co-Frutta SpA, Co-Frutta Soc. coop. arl, Dal Bello Sife Srl, Frigofrutta Srl, Garletti Snc and London Fruit Ltd to pay the costs incurred both at first instance and in connection with the appeal.

(1) OJ C 213 of 06.09.2003

20.8.2005

Official Journal of the European Union

C 205/3

JUDGMENT OF THE COURT

(First Chamber)

of 30 June 2005

in Case C-537/03: Reference for a preliminary ruling from the Korkein Oikeus in Katja Candolin and Others. v Vahinkovakuutusosakeyhtiö Pohjola and Others (1)

(Compulsory motor vehicle insurance - Directives 84/5/EEC and 90/232/EEC - Rules on civil liability - Passenger's contribution to the loss or injury - Refusal or limitation of the right to compensation)

(2005/C 205/05)

Language of the case: Finnish

In Case C-537/03: reference for a preliminary ruling under Article 234 EC from the Korkein Oikeus (Finland), made by decision of 19 December 2003, received at the Court on 22 December 2003, in the proceedings between Katja Candolin, Jari-Antero Viljaniemi, Veli-Matti Paananen against Vahinkovakuutusosakeyhtiö Pohjola, Jarno Ruokoranta, the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Lenaerts, J.N. Cunha Rodrigues (Rapporteur), E. Juhász and M. Ilešič, Judges; L.A. Geelhoed, Advocate General; H. von Holstein, Deputy Registrar, for the Registrar, gave a judgment on 30 June 2005, in which it ruled:

In circumstances such as those in the main proceedings, Article 2(1) of Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles and Article 1 of Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, preclude a national rule which allows the compensation borne by the compulsory motor vehicle insurance to be refused or limited in a disproportionate manner on the basis of the passenger's contribution to the injury or loss he has suffered. The fact that the passenger concerned is the owner of the vehicle the driver of which caused the accident is irrelevant.

(1) OJ C 59 of 06.03.2004

20.8.2005

Official Journal of the European Union

C 205/3

JUDGMENT OF THE COURT

(Third Chamber)

of 12 May 2005

in Case C-542/03: Reference for a preliminary ruling from the Bundesfinanzhof in Hauptzollamt Hamburg-Jonas v Milupa GmbH & Co. KG (1)

(Agriculture - Export refunds - Agricultural products which are processed and incorporated into goods not covered by Annex II of the EC Treaty (now, after amendment, Annex I EC) - Inaccurate declaration - Sanction)

(2005/C 205/06)

Language of the case: German

In Case C-542/03: reference for a preliminary ruling under Article 234 EC from the Bundesfinanzhof (Germany), made by decision of 18 November 2003, received at the Court on 23 December 2003, in the proceedings between Hauptzollamt Hamburg-Jonas and Milupa GmbH & Co. KG — the Court (Third Chamber), composed of A. Rosas (Rapporteur), President of the Chamber, A. La Pergola, J.-P. Puissochet, U. Lõhmus and A. Ó Caoimh, Judges; P. Léger, Advocate General; R. Grass, Registrar, gave a judgment on 12 May 2005, in which it ruled:

The second sentence of the first subparagraph of Article 7(1), the first subparagraph of Article 7(2) and Article 7(5) of Commission Regulation (EC) No 1222/94 of 30 May 1994 laying down common detailed rules for the application of the system of granting export refunds on certain agricultural products exported in the form of goods not covered by Annex II to the Treaty, and the criteria for fixing the amount of such refunds, as amended by Commission Regulation (EC) No 229/96 of 7 February 1996, are to be interpreted as meaning that where an exporter has declared in a request for an export refund that, in the production of the goods in issue, a product was used which, by virtue of Article 1(2) of that regulation, is assimilated to the skimmed milk powder described in Annex A (PG 2), whereas in fact another product was used which, by virtue of the same provision, is also assimilated to the same skimmed milk powder, he is entitled to the grant of an export refund, corrected if appropriate in accordance with Article 11 of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Commission Regulation (EC) No 2945/94 of 2 December 1994.

(1) OJ C 59 of 06.03.2004.

20.8.2005

Official Journal of the European Union

C 205/4

JUDGMENT OF THE COURT

(Second Chamber)

of 30 June 2005

in Case C-28/04 (Reference for a preliminary ruling from the Tribunal de grande instance de Paris): Tod's SpA, Tod's France SARL v Heyraud SA (1)

(Equal treatment - Principle of non-discrimination on grounds of nationality - Copyright and related rights)

(2005/C 205/07)

Language of the case: French

In Case C-28/04: reference for a preliminary ruling under Article 234 EC from the Tribunal de grande instance de Paris (France), made by decision of 5 December 2003, received at the Court on 28 January 2004, in the proceedings between Tod's SpA, Tod's France SARL and Heyraud SA, intervener: Technisynthèse, the Court: (Second Chamber), composed of C.W.A. Timmermans (Rapporteur), President of the Chamber, R. Silva de Lapuerta, R. Schintgen, P. Kūris and G. Arestis, Judges; F.G. Jacobs, Advocate General: R. Grass, Registrar, gave a judgment on 30 June 2005, in which it ruled:

Article 12 EC, which lays down the general principle of non-discrimination on grounds of nationality, must be interpreted as meaning that the right of an author to claim in a Member State the copyright protection afforded by the law of that State may not be subject to a distinguishing criterion based on the country of origin of the work.

(1) OJ C 71 of 20.03.2004

20.8.2005

Official Journal of the European Union

C 205/4

JUDGMENT OF THE COURT

(First Chamber)

of 2 June 2005

in Case C-174/04: Commission of the European Communities v Italian Republic (1)

(Failure of a Member State to fulfil obligations - Article 56 EC - Automatic suspension of voting rights in privatised undertakings)

(2005/C 205/08)

Language of the case: Italian

In Case C-174/04, Commission of the European Communities (Agents: E. Traversa and C. Loggi) v Italian Republic (Agent: I.M. Braguglia, assisted by P. Gentili, avvocato) — action under Article 226 EC for failure to fulfil obligations, brought on 13 April 2004 — the Court (First Chamber), composed of P. Jann (Rapporteur), President of the Chamber, K. Lenaerts, N. Colneric, K. Schiemann and E. Juhász, Judges; J. Kokott, Advocate General; R. Grass, Registrar, gave a judgment on 2 June 2005 in which it:

Declares that, by maintaining in force Decree-Law (decreto-legge) No 192 of 25 May 2001, converted into Law No 301, entitled ‘Urgent provisions to ensure the liberalisation and privatisation of specific public service sectors’ (legge no 301, recante disposizioni urgenti per salvaguardare i processi di liberalizzazione e privatizzazione di specifici settori dei servizi publici), of 20 July 2001, which provides for the automatic suspension of voting rights attaching to holdings in excess of 2 % of the capital of undertakings operating in the electricity and gas sectors, where those holdings are acquired by public undertakings not quoted on regulated financial markets and enjoying a dominant position in their own domestic markets, the Italian Republic has failed to fulfil its obligations under Article 56 EC;

2.	Orders the Italian Republic to pay the costs.

(1) OJ C 156 of 12.06.2004.

20.8.2005

Official Journal of the European Union

C 205/5

JUDGMENT OF THE COURT

(First Chamber)

of 30 June 2005

in Case C-286/04 P: Eurocermex SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Appeal - Community trade mark - Article 7(1)(b) and (3) of Regulation (EC) No 40/94 - Three-dimensional shape of a long-neck bottle in the neck of which a slice of lemon has been plugged - Absolute ground for refusal - Distinctive character)

(2005/C 205/09)

Language of the case: French

In Case C-286/04 P, appeal under Article 56 of the Statute of the Court of Justice, brought on 29 June 2004, Eurocermex SA, established in Evere (Belgium), represented by A. Bertrand, lawyer, appellant, the other party to the proceedings being: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by A. Rassat, acting as Agent, defendant at first instance — the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Lenaerts, K. Schiemann, E. Juhász and M. Ilešič (Rapporteur), Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, gave a judgment on 30 June 2005, in which it:

1.	Dismisses the appeal;

2.	Orders Eurocermex SA to pay the costs.

(1) OJ C 217 of 28.08.2004

20.8.2005

Official Journal of the European Union

C 205/5

JUDGMENT OF THE COURT

(Fifth Chamber)

of 30 June 2005

in Case C-30/05: Commission of the European Communities v Grand Duchy of Luxembourg (1)

(Failure of a Member State to fulfil its obligations - Directives 1999/45/EC and 2001/60/EC - Failure to transpose within the prescribed period)

(2005/C 205/10)

Language of the case: French

In Case C-30/05 Commission of the European Communities (Agents: C.F. Durand and F. Simonetti) v Grand Duchy of Luxembourg (Agent: S. Schreiner) — action under Article 226 EC for failure to fulfil obligations, brought on 28 January 2005 — the Court (Fifth Chamber), composed of R. Silva de Lapuerta, President of the Chamber, C. Gulmann and J. Klučka (Rapporteur), Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, gave a judgment on 30 June 2005, in which it:

Declares that, by failing to adopt, within the prescribed periods, the laws, regulations and administrative provisions necessary to comply with Directive 1999/45/EC of the European Parliament and of the Council of 31 May 1999 concerning the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations, and Commission Directive 2001/60/EC of 7 August 2001 adapting to technical progress Directive 1999/45, 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 82 of 02.04.2005.

20.8.2005

Official Journal of the European Union

C 205/6

Reference for a preliminary ruling from the Gerechtshof te 's-Hertogenbosch by judgment of that court of 16 February 2005 in V.O.F. Dressuurstal Jespers v Inspecteur van de Belastingsdienst/Zuidwest/kantoor Breda van de Rijksbelastingdienst

(Case C-233/05)

(2005/C 205/11)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by judgment of the Gerechtshof te 's-Hertogenbosch ('s-Hertogenbosch Regional Court of Appeal) of 16 February 2005, received at the Court Registry on 30 May 2005, for a preliminary ruling in the proceedings between V.O.F. Dressuurstal Jespers and Inspecteur van de Belastingsdienst/Zuidwest/kantoor Breda van de Rijksbelastingdienst on the following questions:

1(a)	In the case in which a horse that has not been broken in is trained to make it suitable for certain uses, such as, for example, use as a riding horse, is a new article created and is there therefore production within the terms of Article 5(7)(a) of the Sixth Directive? (1)

1(b)

In the case in which, for example, a horse which is already suitable for certain uses such as referred to in Question 1(a) above is trained in such a way that it is capable of participating in (dressage) competitions at a higher level than before such training, is there production as referred to in Question 1(a) above?

2.	Is it material to the reply to these questions whether there is a change to the horse which can be measured objectively, such as, for example, it being or becoming entitled to compete in a higher dressage class?

3.	Does it make any difference in this regard whether the horse concerned also actually attains the intended objective (the supply by the producer) or that the horse does not attain the objective sought by its training on account of problems relating to health or ability, for example?

4.	What are the consequences of the answer to Questions 2 and 3 having regard to the fact that this case concerns a recurrent charge where the tax owed is paid periodically by declaration?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member State relating to turnover taxes— Common system of value added tax: uniform basis of assessment (OJ 1977 L 145 of 13 June 1977, p. 1).

20.8.2005

Official Journal of the European Union

C 205/7

Appeal brought on 28 May 2005 by L'Oréal SA against the judgment delivered on 16 March 2005 by the Second Chamber of the Court of First Instance of the European Communities in Case T-112/03 between L'Oréal SA and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), the other party to the proceedings before the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) having been Revlon Suisse SA

(Case C-235/05 P)

(2005/C 205/13)

Language of the case: English

An appeal against the judgment delivered on 16 March 2005 by the Second Chamber of the Court of First Instance of the European Communities in case T-112/03 (1) between L'Oréal SA and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), the other party to the proceedings before the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) having been Revlon Suisse SA., was brought before the Court of Justice of the European Communities on 28 May 2005 by L'Oréal SA, established in Paris (France), represented by Mr Xavier Buffet Delmas d'Autane.

The Appellant claims that the Court should:

set aside the Judgment of the Court of First Instance of 16 March 2005 in Case T-112/03 in its entirety and annul the decision of the Fourth Board of Appeal of the OHIM of 15 January 2003 regarding the appeal No R0396/2001-4 relating to the opposition proceedings No B 215048 (Community application No 1011576);

b)	order the OHIM to pay all the costs.

Pleas in law and main arguments:

The Appellant submits that the Court of First Instance infringed Article 8(1)(b) of Regulation No 40/94 (2), and did not draw the legal conclusions from its own findings, by refusing to take into account the weak character of the prior mark (such as FLEX) in its assessment of the degree of similarity between this mark and a complex mark (such as FLEXI AIR), in which it was reproduced.

It is submitted that signs are not similar or dissimilar in abstracto, but in concreto (i.e. in light of the perception of the relevant public of such signs). Thus, if the signs had been correctly compared in concreto, the logical conclusion would have been to place less importance on non distinctive signs or prior marks with a weak distinctive character.

The Appellant also contends that the Court of First Instance infringed Articles 36 and 53 of the Statute of the Court of Justice, the contested Judgment being vitiated by a defective statement of reasons. It is submitted that the Court of First Instance breached its duty to state reasons by merely ruling, at paragraph 82, that the ‘weak distinctive character of the earlier mark is not disputed’, without drawing any conclusion on the likelihood of confusion.

(1) OJ C 132, 28.05.2005, p. 25.

(2) Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, OJ L 11, 14.01.1994, p. 1.

20.8.2005

Official Journal of the European Union

C 205/7

Reference for a preliminary ruling from the Tribunal Supremo (Spain) by order of that court of 13 April 2005 in the case of Asnef-Equifax Servicios de Información sobre Solvencia y Crédito, S.L. and Administración del Estado v Asociación de Usuarios de Servicios Bancarios (AUSBANC)

(Case C-238/05)

(2005/C 205/14)

Language of the case: Spanish

Reference has been made to the Court of Justice of the European Communities by order of the Tribunal Supremo (Spain) of 13 April 2005, received at the Court Registry on 30 May 2005, for a preliminary ruling in the proceedings between Asnef-Equifax Servicios de Información sobre Solvencia y Crédito, S.L. and Administración del Estado and Asociación de Usuarios de Servicios Bancarios (AUSBANC) on the following questions:

Is it possible to interpret Article 81(1) EC as meaning that agreements between financial institutions for the exchange of information about the solvency of their customers and lateness of payments by them may be regarded as compatible with the common market, in so far as they affect the financial policies of the European Union and the common credit market and have the effect of restricting competition in the financial and credit institution sector?

Is it possible to interpret Article 81(3) EC as meaning that a Member State may, by means of bodies responsible for overseeing competition, authorise agreements between financial institutions for the exchange of information about their customers through the establishment of a credit information register, in so far as the creation of that register produces benefits for consumers and users of those financial services?

20.8.2005

Official Journal of the European Union

C 205/8

Reference for a preliminary ruling from the Gerechtshof te 's-Hertogenbosch by order of that court of 31 May 2005 in G.M. van de Coevering v Rijksbelastingdienst

(Case C-242/05)

(2005/C 205/15)

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-Hertogenbosch ('s-Hertogenbosch Regional Court of Appeal) of 31 May 2005, received at the Court Registry on 3 June 2005, for a preliminary ruling in the proceedings between G.M. van de Coevering and Roermond Customs District of the Rijksbelastingdienst on the following question:

Does Community law, in particular the freedom to provide services as set out in Articles 49 EC to 55 EC, preclude the Netherlands from charging a natural person resident in the Netherlands — who leases in another Member State, under a leasing contract with a lessor, a passenger car which is not registered in the register pursuant to the Wegenverkeerswet 1994 and on which no passenger car and motorcycle tax under Article 1(2) of the Wet BPM (1) has been paid — passenger car and motorcycle tax under Article 1(5) of the Wet BPM on commencement of use in the Netherlands by that passenger car of the highway within the meaning of the Wegenverkeerswet 1994, where the full amount of the tax is chargeable irrespective of the period of the lease and the duration of the use of the highway in the Netherlands and where that natural person has no right at all to an exemption or a refund?

(1) 1992 Law on passenger car and motorcycle tax.

20.8.2005

Official Journal of the European Union

C 205/8

Reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Bavarian Higher Administrative Court) by order of that court of 19 April 2005 in Bund Naturschutz in Bayern e.V. v Freistaat Bayern

(Case C-244/05)

(2005/C 205/16)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Bayerischer Verwaltungsgerichtshof (Bavarian Higher Administrative Court) of 19 April 2005, received at the Court Registry on 19 April 2005, for a preliminary ruling in the proceedings between Bund Naturschutz in Bayern e.V. and Freistaat Bayern on the following question:

What protection regime is required under Article 3(1) of Directive 92/43 EEC (1) in conjunction with the sixth recital in the preamble to that Directive in the light of the prohibition on frustrating the objectives of the Treaty laid down in Article 10(2) of the EC Treaty (Treaty establishing the European Community of 25 March 1957, as most recently amended by the 2003 EU Treaty of Accession of 16 April 2003) and following the judgment of the European Court of Justice of 13 January 2005 in Case C-117/03 for sites which could be designated sites of Community importance, particularly those with priority natural habitat types and/or priority species, before they appear on the list of sites of Community importance adopted by the Commission of the European Communities under the procedure provided for in Article 21 of the Directive?

2.	What is the effect on that protection regime if the said sites already appear on the list of national recommendations submitted to the Commission under Article 4(1) of Directive 92/43/EEC?

Is a national protection regime for the said sites under Article 48(2) of the Bavarian Naturschutzgesetz (Nature Conservancy Law) sufficient to satisfy the requirements of Community law under Article 3(1) of Directive 92/43/EEC in conjunction with the sixth recital in the preamble to that Directive in the light of the prohibition on frustrating the objectives of the Treaty laid down in Article 10(2) of the EC Treaty?

Article 48(2) of the Bavarian Naturschutzgesetz is worded as follows:

‘Until such time as regulations are brought in under Part III the institutes for nature conservation having authority under Article 45 or agencies for the provisional safeguarding of areas of conservation and objects meriting protection may bring in general or specific regulations imposing the bans on changes provided for under Part III for a period of up to two years if it is feared that the purpose of the intended protective measure would be adversely affected by changes; if special circumstances so require, the period may be extended for a maximum of one further year. The measure may not be brought in unless the competent institute for nature conservation or agency instigates procedure for definitive protection at the same time or immediately thereafter.’

(1) OJ. 1992 L 206, p . 7

20.8.2005

Official Journal of the European Union

C 205/9

Action brought on 14 June 2005 by Commission of the European Communities against Ireland

(Case C-248/05)

(2005/C 205/17)

Language of the case: English

An action against Ireland was brought before the Court of Justice of the European Communities on 14 June 2005 by the Commission of the European Communities, represented by Ms Sara Pardo Quintillán and Ms Donatella Recchia, acting as Agents, assisted by F. Louis of the Brussels bar and C. O'Daly, Solicitor of the Law Society of Ireland, with an address for service in Luxembourg.

The applicant claims that the Court should:

declare that, in failing to take all the measures necessary to comply with Articles 4, 5, 7, 9 and 10 of Council Directive 80/68/EEC (1) on the protection of groundwater against pollution caused by certain dangerous substances at Ballymurtagh landfill (County Wicklow), Ireland has failed to comply with this Directive and with its obligations under the Treaty;

2.	declare that, in failing to take all the measures necessary to comply with Articles 5, 7, 8, 10, 12, and 13 of Council Directive 80/68/EEC with regard to indirect discharges from septic tanks, Ireland has failed to comply with this Directive and with its obligations under the Treaty; and

3.	order Ireland to pay the costs.

Pleas in law and main arguments

On the basis of complaints submitted to it, the Commission has become aware of widespread breaches of Council Directive 80/68/EEC in Ireland.

First, since 1989 Ireland has permitted a municipal landfill to operate at Ballymurtagh, Co. Wicklow without formal authorization being granted as required under Article 4(2) of Directive 80/68. As a consequence of not complying with Article 4(2), Article 9 of the same directive was also breached. In addition, the waste licence covering the landfill site, granted by Ireland's Environmental Protection Agency only in 2001, infringes Articles 4, 5, 7 and 10 of Directive 80/68/EEC.

Second, the Commission has uncovered evidence demonstrating that Ireland has failed to comply with Directive 80/68/EEC in relation to indirect discharges into groundwater from septic tanks. In this regard, the Commission has investigated circumstances relating to a hotel premises at Creacon Lodge, Co. Wexford, Ireland's longstanding interpretation of Article 5(1) of Directive 80/68/EEC and wider breaches of the same Directive throughout the Irish countryside. Reports on eutrophication of the Lakes of Killarney, Co. Kerry, Irish official water pollution reports, and breaches of Directive 80/778/EEC (2) on the quality of water intended for human consumption demonstrate Ireland's failure to comply with relevant provisions of Directive 80/68/EEC.

The Commission therefore considers that Ireland has failed to fulfil its obligations under Articles 4, 5, 7, 8, 9, 10, 12 and 13 of Council Directive 80/68/EEC on the protection of groundwater against pollution caused by certain dangerous substances.

(1) Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances, OJ L 20, 26.01.1980, p. 43.

(2) Council Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption, OJ L 229, 30.08.1980, p. 11.

20.8.2005

Official Journal of the European Union

C 205/11

Reference for a preliminary ruling from the High Court of Justice (England and Wales), Queen's Bench Division (Administrative Court), Divisional Court, by order of that court of 20 May 2005 in The Queen on the application of Thames Water Utilities Ltd v South East London Division, Bromley Magistrates' Court, Intervener: The Environment Agency

(Case C-252/05)

(2005/C 205/20)

Language of the case: English

Reference has been made to the Court of Justice of the European Communities by order of the High Court of Justice (England and Wales), Queen's Bench Division (Administrative Court), Divisional Court, of 20 May 2005, received at the Court Registry on 15 June 2005, for a preliminary ruling in the proceedings between The Queen on the application of Thames Water Utilities Ltd and South East London Division, Bromley Magistrates' Court, Intervener: Environment Agency, on the following question:

Whether sewage which escapes from a sewerage network maintained by a statutory sewerage undertaker pursuant to the Urban Waste Water Treatment Directive 91/271/EEC (1) (‘UWWTD’) and/or the Water Industry Act 1991 (‘WIA 1991’), amounts to ‘directive waste’ for the purposes of the Directive 75/442/EEC (2) (as amended by Directive 91/156/EEC (3)) (‘the Waste Framework Directive’ hereinafter, the ‘WFD’).

If the answer to (1) is in the affirmative, whether the aforesaid sewage:

(a)	is excluded from the scope of ‘directive waste’ under the WFD by virtue of article 2(1)(b)(iv) of the WFD, in particular, by virtue of the UWWTD and/or the WIA 1991; or,

(b)	comes within article 2(2) of the WFD and is excluded from the scope of ‘directive waste’ under the WFD, in particular, by virtue of the UWWTD.

(1) Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment, OJ L 135, 30.05.1991, p. 40.

(2) Council Directive 75/442/EEC of 15 July 1975 on waste, OJ L 194, 25.07.1975, p. 39.

(3) Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442/EEC on waste, OJ L 78, 26.03.1991, p. 32.

20.8.2005

Official Journal of the European Union

C 205/11

Action brought on 16 June 2005 by the Commission of the European Communities against the Kingdom of Belgium

(Case C-254/05)

(2005/C 205/21)

Language of the case: French

An action against the Kingdom of Belgium was brought before the Court of Justice of the European Communities on 16 June 2005 by the Commission of the European Communities, represented by Bruno Stromsky, acting as Agent, with an address for service in Luxembourg.

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

declare that, by requiring automatic fire detection systems with point detectors lawfully manufactured or marketed in another Member State which do not have the ‘EC’ mark:

—	to comply with Belgian standard NBN S21-100;

—	to be subject to type approval, in this case by BOSEC, an obstacle made worse by the disproportionate costs which that approval incurs;

—	to undergo tests and checks in connection with that type approval which, essentially, duplicate the controls which have already been carried out under other procedures in another Member State,

the Kingdom of Belgium has failed to fulfil its obligations under Article 28 EC;

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

Pleas in law and main arguments

According to the Commission, the Belgian regulations introduce restrictions on the use of fire detectors lawfully manufactured or marketed in other Member States which are therefore incompatible with Article 28 EC and are not justified in the light of Article 30 EC.

20.8.2005

Official Journal of the European Union

C 205/12

Action brought on 16 June 2005 by the Commission of the European Communities against the Italian Republic

(Case C-255/05)

(2005/C 205/22)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 16 June 2005 by the Commission of the European Communities, represented by M. Konstantinidis, acting as Agent, and by F. Louis and A. Capobianco, lawyers.

The Commission claims that the Court should:

—

declare that the Italian Republic has failed to fulfil its obligations under Article 2(1) and Article 4(1) 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, (1) as amended by Council Directive 97/11/EC of 3 March 1997, (2) and under Article 12(1) of Directive 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration of waste (3)

—

inasmuch as it did not subject, prior to granting construction consent, the project for the third ASM Brescia incinerator line, which is a plant listed in Annex I to Directive 85/337/EEC, as amended, to an environmental impact assessment in accordance with Articles 5 to 10 of Directive 85/337/EEC, as amended; and

—

inasmuch as it did not make the application for a permit to operate the third Brescia incinerator line available at one or more locations accessible to the public for an appropriate period to enable it to comment thereon before the competent authority reached a decision, and did not make available to the public that decision and a copy of the permit;

—	order the Italian Republic to pay the costs.

Pleas in law and main arguments

ASM Brescia SpA operates an incinerator which comprises two lines and was authorised in 1993. Before 1993, however, ASM Brescia SpA developed a ‘third line’ of waste incinerators.

The third line of the Brescia incinerator is classified as a plant which carries out recovery operations as provided for in Point R 1 of Annex IIB to Directive 75/442//EEC and has a capacity of over 100 tonnes per day. As such, it should have been subject to the environmental impact assessment (‘EIA’) procedures within the meaning of Directive 85/337/EEC, as amended.

However, the development project for the third line was never subject either to the EIA procedure or to specific examination (checks that an EIA is required). That has also been confirmed by the Italian authorities. The Italian legislation does not, in fact, provide for a general EIA requirement for waste processing plants in accordance with the provisions of Directive 85/337/EEC, but contains wide exceptions which restrict considerably the scope of that directive.

The Commission submits that the exclusion of plants which carry out recovery activities from the EIA procedures has no basis in Community legislation and is therefore a clear infringement thereof.

With regard to Article 12 of Directive 2000/76/EC, the Commission complains that the Italian authorities did not publish the application for a permit to operate the third incinerator line and the respective authorisation measure in accordance with the provisions of that article.

(1) OJ L 175 of 05.07.1985, p. 40.

(2) OJ L 73 of 14.03.1997, p. 5.

(3) OJ L 332 of 28.12.2000, p. 91.

20.8.2005

Official Journal of the European Union

C 205/13

Reference for a preliminary ruling from the Komárom-Esztergom Megyei Bíróság by order of that court of 29 April 2005 in Lakél Kft., Pár-Bau Kft. and Rottelma Kft. v Komárom-Esztergom Megyei Közigazgatási Hivatal

(Case C-261/05)

(2005/C 205/24)

Language of the case: Hungarian

Reference has been made to the Court of Justice of the European Communities by order of the Komárom-Esztergom Megyei Bíróság (County Court, Komárom-Esztergom) of 29 April 2005, received at the Court Registry on 22 June 2005, for a preliminary ruling in the proceedings between Lakép Kft., Pár-Bau Kft. and Rottelma Kft. and Komárom-Esztergom Megyei Közigazgatási Hivatal on the following questions:

1.	What, according to Sixth Council Directive 77/388/EEC (1) of 17 May 1977, are the criteria which allow a tax to be characterised as a tax having the nature of a turnover tax?

Should a tax the taxable basis of which is the net turnover corresponding to sales made or to services provided, after deduction of the purchase price of the goods sold and the value of the services provided by third parties, and also of the material costs (or a certain proportion thereof), be regarded as having the nature of a turnover tax?

3.	Is Article 33 of the directive to be taken to mean that in the Member States only a single tax having the nature of a turnover tax may be maintained?

4.	In so far as two or more taxes having the nature of turnover taxes are maintained in a Member State after accession to the European Union, is the assessment, with retroactive effect, of a tax — relating to a period before accession — contrary to Article 33 of the directive?

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

20.8.2005

Official Journal of the European Union

C 205/13

Action brought on 22 June 2005 by the Commission of the European Communities against the Republic of Austria

(Case C-262/05)

(2005/C 205/25)

Language of the case: German

An action against the Republic of Austria was brought before the Court of Justice of the European Communities on 22 June 2005 by the Commission of the European Communities, represented by Hans Støvlbæk and Andreas Manville, with an address for service in Luxembourg.

The applicant claims that the Court should:

—

declare that by not adopting the necessary laws, regulations and administrative provisions to transpose Directive 2001/19/EC (1) 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, or by not informing the Commission of such provisions, the Republic of Austria has failed to fulfil its obligations to implement that directive fully;

—	order the Republic of Austria to pay the costs of the proceedings.

Pleas in law and main arguments

The time-limit for transposition of the directive passed on 3 January 2003.

(1) OJ 2001 L 206, p. 1.

20.8.2005

Official Journal of the European Union

C 205/14

Action brought on 22 June 2005 by the Commission of the European Communities against the Federal Republic of Germany

(Case C-264/05)

(2005/C 205/26)

Language of the case: German

An action against the Federal Republic of Germany was brought before the Court of Justice of the European Communities on 22 June 2005 by the Commission of the European Communities, represented by Hans Støvlbæk and Andreas Manville, with an address for service in Luxembourg.

The applicant claims that the Court should:

—

declare that by not adopting the necessary laws, regulations and administrative provisions to transpose Directive 2001/19/EC (1) 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, or by not informing the Commission of such provisions, the Federal Republic of Germany has failed to fulfil its obligations to implement fully that directive;

—	order the Federal Republic of Germany to pay the costs of the proceedings.

Pleas in law and main arguments

The time-limit for transposition of the directive passed on 3 January 2003.

(1) OJ 2001 L 206, p. 1.

20.8.2005

Official Journal of the European Union

C 205/15

Assignment of Judges to the Chambers

(2005/C 205/28)

On 7 July 2005 the Court of First Instance decided to establish five Chambers of five Judges and five Chambers of three Judges for the period from 1 October 2005 to 30 September 2006 and to assign Judges to them as follows:

First Chamber, Extended Composition, sitting with five Judges:

Mr Vesterdorf, President, Mr García-Valdecasas, Mr Cooke, Ms Labucka and Ms Trstenjak, Judges;

First Chamber, sitting with three Judges:

Mr García-Valdecasas, President of Chamber, Mr Cooke, Ms Labucka and Ms Trstenjak, Judges;

Second Chamber, Extended Composition, sitting with five Judges:

Mr Pirrung, President of Chamber, Mr Meij, Mr Forwood, Ms Pelikánová and Mr Papasavvas, Judges;

Second Chamber, sitting with three Judges:

Mr Pirrung, President of Chamber,

(a)	Mr Meij and Ms Pelikánová, Judges

(b)	Mr Forwood and Mr Papasavvas, Judges;

Third Chamber, Extended Composition, sitting with five Judges:

Mr Jaeger, President of Chamber, Ms Tiili, Mr Azizi, Ms Cremona and Mr Czúcz, Judges;

Third Chamber, sitting with three Judges:

Mr Jaeger, President of Chamber

(a)	Ms Tiili and Mr Czúcz, Judges

(b)	Mr Azizi and Ms Cremona, Judges;

Fourth Chamber, Extended Composition, sitting with five Judges:

Mr Legal, President of Chamber, Ms Lindh, Mr Mengozzi, Ms Wiszniewska-Białecka and Mr Vadapalas, Judges;

Fourth Chamber, sitting with three Judges:

Mr Legal, President of Chamber

(a)	Ms Lindh and Mr Vadapalas, Judges

(b)	Mr Mengozzi and Ms Wiszniewska-Białecka, Judges;

Fifth Chamber, Extended Composition, sitting with five Judges:

Mr Vilaras, President of Chamber, Ms Martins Ribeiro, Mr Dehousse, Mr Šváby and Ms Jürimäe, Judges;

Fifth Chamber, sitting with three Judges:

Mr Vilaras, President of Chamber

(a)	Ms Martins Ribeiro and Ms Jürimäe, Judges

(b)	Mr Dehousse and Mr Šváby, Judges.

In the First Chamber sitting with three Judges, the Judges who sit with the President of the Chamber to make up the Chamber will be designated in turn, in the order provided for by Article 6 of the Rules of Procedure of the Court of First Instance, subject to the presence of connected cases. In the Second to Fifth Chambers sitting with three Judges, the President of the Chamber will sit either with the Judges referred to at (a) above or with those referred to at (b) above, depending on which of those formations the Judge-Rapporteur belongs to. For cases in which the President of the Chamber is the Judge-Rapporteur, the President of the Chamber will sit with the Judges of one or other of those formations alternately in accordance with the order in which the cases are registered, subject to the presence of connected cases.

In cases where the written procedure was completed and a hearing in the oral procedure was held or fixed before 1 October 2005, the First Chamber sitting with three Judges shall continue to sit with the same composition as previously for the oral procedure, the deliberation and the judgment.

Composition of the Grand Chamber

On 7 July 2005 the Court of First Instance decided, in accordance with Article 10(1) of the Rules of Procedure, that for the period from 1 October 2005 to 30 September 2006 the 13 Judges of whom the Grand Chamber is composed shall be the President of the Court of First Instance, the Presidents of the IInd, IIIrd, IVth and Vth Chambers, Extended Compositions, who would have had to hear the case in question if it had been assigned to a Chamber composed of five Judges, and as many other Judges as necessary to complete the Grand Chamber, designated by the President of the Court of First Instance, from among the Judges of each of the other Chambers, in the order of precedence of those Judges within their Chambers according to seniority in office under Article 6 of the Rules of Procedure of the Court of First Instance, in a rota applied during the period of three years for which the Presidents of the Chambers composed of five Judges are elected.

Plenary session

On 7 July 2005 the Court of First Instance decided, in accordance with the second subparagraph of Article 32(1) of the Rules of Procedure, that where, following the designation of an Advocate General pursuant to Article 17 of the Rules of Procedure, there is an even number of Judges in the Court of First Instance sitting in plenary session, the rota established in advance, applied during the period of three years for which the Presidents of the Chambers composed of five Judges are elected, in accordance with which the President of the Court is to designate the Judge who will not take part in the judgment of the case shall be in reverse order to the order in which the Judges rank according to their seniority in office under Article 6 of the Rules of Procedure unless the Judge who would thus be designated is the Judge-Rapporteur. In that event, it is the Judge ranking immediately above him who shall be designated.

Designation of the Judge replacing the President of the Court of First Instance as the Judge hearing an application for interim measures

On 7 July 2005 the Court of First Instance decided, in accordance with Article 106 of the Rules of Procedure, to designate Judge García-Valdecasas to replace the President of the Court of First Instance for the purpose of deciding applications for interim measures where the latter is absent or prevented from dealing with them, in respect of the period from 1 October 2005 to 30 September 2006.

Criteria for assigning cases to the Chambers

On 7 July 2005 the Court of First Instance laid down criteria as follows for the assignment of cases to the Chambers for the period from 1 October 2005 to 30 September 2006, in accordance with Article 12 of the Rules of Procedure.

1.	Cases shall be assigned, as soon as applications have been lodged and without prejudice to any subsequent application of Articles 14 and 51 of the Rules of Procedure, to Chambers of three Judges.

Cases shall be allocated to the Chambers in turn, in accordance with the date on which they are registered at the Registry, following four separate rotas, namely:

—	for cases concerning application of the competition rules applicable to undertakings, the rules on State aid and the rules on trade protection measures;

—	for the cases referred to in Article 236 of the EC Treaty and Article 152 of the EAEC Treaty;

—	for cases concerning intellectual property rights, as envisaged by Article 130(1) of the Rules of Procedure;

—	for all other cases.

In applying those rotas, the First Chamber shall not be taken into consideration at each fifth turn.

The President of the Court of First Instance may derogate from the rotas on the ground that cases are related or with a view to ensuring an even spread of the workload.

20.8.2005

Official Journal of the European Union

C 205/17

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 15 June 2005

in Case T-17/02 Fred Olson SA v Commission of the European Communities (1)

(State aid - Maritime transport - Existing aid - New aid - Service of general economic interest)

(2005/C 205/29)

Language of the case: Spanish

In Case T-17/02: Fred Olson SA, established in Santa Cruz, Tenerife (Spain), represented by R. Marín Correa and F. Marín Riaño, lawyers, against Commission of the European Communities (Agent: J. Buendía Sierra, with an address for service in Luxembourg), supported by the Kingdom of Spain (Agent: N. Díaz Abad, lawyer, with an address for service in Luxembourg — application for annulment of the Commission Decision of 25 July 2001 relating to State aid file NN 48/2001 — Spain — Aid for the Trasmediterránea shipping company (OJ 2002 C 96, p. 4) — the Court of First Instance (Second Chamber, Extended Composition Chamber), composed of J. Pirrung, President, A.W.H. Meij, N. J. Forwood, I. Pelikánová and S. Papasavvas, Judges; J. Palacio González, Principal Administrator for the Registrar, gave a judgment on 15 June 2005, in which it:

1.	Dismisses the application.

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

3.	Orders the Kingdom of Spain to bear its own costs.

(1) OJ C 97 of 20.04.2002

20.8.2005

Official Journal of the European Union

C 205/17

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 15 June 2005

in Case T-171/02 Regione autonoma della Sardegna v Commission of the European Communities (1)

(State aid - Aid scheme for the restructuring of small agricultural enterprises - Aid affecting trade between Member States and distorting or threatening to distort competition - Guidelines on State aid for rescuing and restructuring firms in difficulty - Conditional decision - Time-limits applicable to the procedure for controlling State aid - Protection of legitimate expectations - Statement of reasons - Intervention - Intervener's claims, pleas and arguments)

(2005/C 205/30)

Language of the case: Italian

In Case T-171/02: Regione autonoma della Sardegna, represented by G. Aiello and G. Albenzio, avvocati dello Stato, with an address for service in Luxembourg, supported by Confederazione italiana agricoltori della Sardegna, Federazione regionale coltivatori diretti della Sardegna, Federazione regionale degli agricoltori della Sardegna, established in Cagliari (Italy), represented by F. Ciulli and G. Dore, lawyers, against Commission of the European Communities (Agent: V. Di Bucci, with an address for service in Luxembourg) — application for annulment of Commission Decision 2002/229/EC of 13 November 2001 on the aid scheme which the Sardinia Region (Italy) is planning to implement for the restructuring of holdings in difficulty in the protected crops sector (OJ 2002 L 77, p. 2) — the Court of First Instance (Fourth Chamber, Extended Composition), composed of H. Legal, President, V. Tiili, A.W.H. Meij, M. Vilaras and N.J. Forwood, Judges; J. Palacio González, Principal Administrator, for the Registrar, gave a judgment on 15 June 2005, in which it:

1.	Dismisses the application;

2.	Orders the Regione autonoma della Sardegna to pay the costs, with the exception of those referred to in point 3 below;

3.	Orders the Confederazione italiana agricoltori della Sardegna, the Federazione regionale coltivatori diretti della Sardegna and the Federazione regionale degli agricoltori della Sardegna to bear their own costs, in addition to those incurred by the Commission as a result of their intervention.

(1) OJ C 191 of 10.8.2002

20.8.2005

Official Journal of the European Union

C 205/18

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 15 June 2005

in Joined Cases T-71/03, T-74/03, T-87/03 and T-91/03 Tokai Carbon Co. Ltd v Commission of the European Communities (1)

(Competition - Cartels - Specialty graphite market - Price fixing - Liability - Calculation of fines - Cumulation of penalties - Duty to state reasons - Rights of the defence - Guidelines on the method of setting fines - Applicability - Gravity and duration of the infringement - Attenuating circumstances - Aggravating circumstances - Ability to pay - Cooperation during the administrative procedure - Methods of payment)

(2005/C 205/31)

Languages of the case: German and English

In Joined Cases T-71/03, T-74/03, T-87/03 and T-91/03, Tokai Carbon Co. Ltd, established in Tokyo (Japan), represented by G. van Gerven and T. Franchoo, lawyers, with an address for service in Luxembourg, Intech EDM BV, established in Lomm (Netherlands), represented by M. Karl and C. Steinle, lawyers, Intec EDM AG, established in Losone (Switzerland) M. Karl and C. Steinle, lawyers, SGL Carbon AG, established in Wiesbaden (Germany), represented by M. Klusmann and P. Niggemann, lawyers, against Commission of the European Communities (agents: W. Mölls, P. Hellström, F. Castillo de la Torre and S. Rating, acting as Agents, assisted, in Cases T-74/03 and T-87/03, by H. J. Freund, lawyer, with an address for service in Luxembourg), actions for annulment in full or in part of Commission Decision C(2002) 5083 final of 17 December 2002 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/E-2/37.667 — Speciality Graphite), the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A.W.H. Meij and N.J. Forwood, Judges; J. Palacio González, Principal Administrator, Registrar, gave a judgment on 15 June 2005, in which it:

In Case T-71/03 Tokai Carbon v Commission:

—	dismisses the application;

—	orders the applicant to pay the costs.

In Case T-74/03 Intech EDM BV v Commission:

—	dismisses the application;

—	orders the applicant to pay the costs.

In Case T-87/03 Intech EDM AG v Commission:

—	sets the fine imposed on the applicant by Article 3 of Decision COMP/E-2/37.667 at EUR 420 000;

—	amends Article 3(h) of Decision COMP/E-2/37.667 so that the joint and several liability of Intech EDM AG is limited to EUR 420 000;

—	dismisses the remainder of the application;

—	orders the applicant to bear two thirds of its own costs and to pay two thirds of the costs incurred by the Commission, and the Commission to bear one third of its own costs and to pay one third of the costs incurred by the applicant.

In Case T-91/03 SGL Carbon v Commission:

—	sets the fine imposed on the applicant by Article 3 of Decision COMP/E-2/37.667 at EUR 9 641 970 in respect of the infringement committed in the isostatic graphite sector;

—	dismisses the remainder of the application;

—	orders the applicant to bear two thirds of its own costs and to pay two thirds of the costs incurred by the Commission, and the Commission to bear one third of its own costs and to pay one third of the costs incurred by the applicant.

(1) OJ C 112 of 10.5.2003

20.8.2005

Official Journal of the European Union

C 205/19

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 22 June 2005

in Case T-102/03 Centro informativo per la collaborazione tra le imprese e la promozione degli investimenti in Sicilia SpA (CIS) v Commission of the European Communities (1)

(European Regional Development Fund - Withdrawal of financial assistance - Failure to take into consideration expenditure committed by the beneficiary of the assistance - Article 24 of Regulation (EEC) No 4253/88 - Obligation to give reasons - Raised by the Court of its own motion)

(2005/C 205/32)

Language of the case: Italian

In Case T-102/03: Centro informativo per la collaborazione tra le imprese e la promozione degli investimenti in Sicilia SpA (CIS), established in Catania (Italy), represented by A. Scuderi and G. Motta, lawyers, against Commission of the European Communities (Agents: E. de March and L. Flynn, assisted by A. Dal Ferro, lawyer, with an address for service in Luxembourg) — action for annulment of Commission Decision C (2002) 4155 of 15 November 2002, relative to the withdrawal of assistance from the European Regional Development Fund (ERDF) granted by Commission Decision C (93) 256/4 of 16 February 1993 in the form of a global grant in respect of the activities of an information centre for collaboration between undertakings and the promotion of investment and recovery of the advance paid by the Commission as part of that assistance — the Court of First Instance (First Chamber), composed of J.D. Cooke, President, R. García-Valdecasas and I. Labucka, Judges; J. Palacio González, Principal Administrator, for the Registrar, gave a judgment on 22 June 2005, in which it:

Annuls Commission Decision C (2002) 4155 of 15 November 2002 on the withdrawal of assistance from the European Regional Development Fund granted by Commission Decision C (93) 256/4 of 16 February 1993 in so far as it withdraws assistance concerning the expenditure effected by the Centro informativo per la collaborazione tra le imprese e la promozione degli investimenti in Sicilia SpA in the certified amount of ITL 688 505 743;

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

(1) OJ C 112 of 10.5.2003.

20.8.2005

Official Journal of the European Union

C 205/19

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 15 June 2005

in Case T-349/03 Corsica Ferries France SAS v Commission of the European Communities (1)

(State aid - Action for annulment - Restructuring aid - Decision declaring the aid compatible with the common market - Commission guidelines - Duty to give statement of reasons - Compliance with the conditions - Minimal character of the aid)

(2005/C 205/33)

Language of the case: French

In Case T-349/03: Corsica Ferries France SAS, established in Bastia (France), represented by S. Rodrigues and C. Scapel, lawyers, with an address for service in Luxembourg, against Commission of the European Communities (Agents: C. Giolito and H. van Vliet, with an address for service in Luxembourg), supported by the French Republic (Agents: G. de Bergues and S. Ramet, with an address for service in Luxembourg) and by Société nationale maritime Corse Meditérranée (SNCM) SA, established in Marseille (France), initially represented by H. Tassey, then by O. d'Ormesson and A. Bouin, lawyers — action for annulment of Commission Decision 2004/166/EC of 9 July 2003 on aid which France intends to grant for the restructuring of the Société Nationale Maritime Corse-Méditerranée (SNCM) (OJ 2004 L 61, p. 13) — the Court of First Instance (Third Chamber), composed of M. Jaeger, President, V. Tiili and O. Czúcz, Judges; I. Natsinas, Administrator, for the Registrar, gave a judgment on 15 June 2005, in which it:

1.	Annuls Commission Decision 2004/166/EC of 9 July 2003 on aid which France intends to grant for the restructuring of the Société Nationale Maritime Corse-Méditerranée (SNCM);

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

3.	Orders the French Republic and SNCM to bear their own costs.

(1) OJ C 7 of 10. 01. 2004

20.8.2005

Official Journal of the European Union

C 205/20

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 16 June 2005

in Case T-352/03, Giorgio Lebedef v Commission of the European Communities (1)

(Community officials - Staff report - Delay in drawing up report - Action for damages)

(2005/C 205/34)

Language of the case: French

In Case T-352/03, Giorgio Lebedef, official of the Commission of the European Communities, residing in Senningerberg (Luxembourg), represented by G. Bouneou and F. Frabetti, lawyers, with an address for service in Luxembourg, v Commission of the European Communities (Agents: J. Currall and C. Berardis-Kayser, with an address for service in Luxembourg) — action for damages by way of compensation for the non-pecuniary damage suffered due to the delay in drawing up the staff report for the 1999/2001 period, — the Court of First Instance, composed of V. Tiili, Judge, Registrar: I. Natsinas, Administrator, has given a judgment on 16 June 2005, in which it:

1)	Orders the Commission to pay the applicant the amount of EUR 950.

2)	Dismisses the remainder of the action.

3)	Orders the Commission to pay the costs.

(1) OJ C 7 of 10.1.2004

20.8.2005

Official Journal of the European Union

C 205/20

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 15 June 2005

in Case T-7/04 Shaker di L. Laudato & C. Sas v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Application for figurative Community trade mark Limoncello della Costiera Amalfitana shaker - Earlier national word mark LIMONCHELO - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2005/C 205/35)

Language of the case: Italian

In Case T-7/04: Shaker di L. Laudato & C. Sas, established in Vietri sul Mare (Italy), represented by F. Sciaudone, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (agent: M. Capostagno), the other party to the proceedings before the Board of Appeal of OHIM having been Limiñana y Botella, SL, established in Monforte del Cid (Spain), action brought against the decision of the Second Board of Appeal of OHIM of 24 October 2003 (Case R 933/ 2002-2), relating to opposition proceedings between Limiñana y Botella, SL and Shaker di L. Laudato & C. Sas, the Court of First Instance (Third Chamber), composed of M. Jaeger, President, J. Azizi and E. Cremona, Judges; B. Pastor, Deputy Registrar, gave a judgment on 15 June 2005, in which it:

Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 24 October 2003 (Case R 933/2002-2) and alters it so that the appeal brought before OHIM by the applicant is well founded and consequently the opposition must be rejected;

2.	Orders OHIM to pay the costs.

(1) OJ C 59 of 6.3.2004.

20.8.2005

Official Journal of the European Union

C 205/21

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 22 June 2005

in Case T-34/04 Plus Warenhandelsgesellschaft mbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Application for a Community figurative mark containing the verbal element ‘Turkish Power’ - Earlier word mark POWER - Opposition proceedings - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2005/C 205/37)

Language of the case: German

In Case T-34/04: Plus Warenhandelsgesellschaft mbH, established in Mühlheim (Germany), represented by B. Piepenbrink, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agent: G. Schneider), the other parties to the proceedings before the OHIM Board of Appeal having been Joachim Bälz and Friemar Hiller, residing in Stuttgart (Germany) — action brought against the decision of the Second Board of Appeal of OHIM of 25 November 2003 (Case R 620/2002-2) concerning opposition proceedings between Tengelmann Warenhandelsgesellschaft and Bälz and Hiller — the Court of First Instance (Fourth Chamber), composed of H. Legal, President, P. Lindh and V. Vadapalas, Judges; C. Kristensen, Administrator, for the Registrar, gave a judgment on 22 June 2005, in which it:

1.	Dismisses the application;

2.	Orders the applicant to pay the costs.

(1) OJ C 106 of 30.4.2004

20.8.2005

Official Journal of the European Union

C 205/21

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 15 June 2005

in Case T-186/04 Spa Monopole, compagnie fermière de Spa SA/NV v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Opposition proceedings - Application for registration of Community work mark SPAFORM - Earlier word marks SPA and SPA THERMES - Partial rejection of the opposition - Rule 18(1) of Regulation (EC) No 2868/95)

(2005/C 205/38)

Language of the case: English

In Case T-186/04, Spa Monopole, compagnie fermière de Spa SA/NV, established in Spa (Belgium), represented by L. de Brouwer, E. Cornu, É. De Gryse and D. Moreau, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agent: G. Schneider), the other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance, being Spaform Ltd, established in Southampton (United Kingdom), represented by J. Gardner and A. Howard, Barristers, application for annulment of the decision of the Fourth Board of Appeal of OHIM of 25 February 2004 (Case R 827/2002-4) relating to opposition proceedings between Spa Monopole, compagnie fermière de Spa SA/NV and Spaform Ltd — 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 15 June 2005, in which it:

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 25 February 2004 (Case R 827/2002-4) in part, in so far as it declares inadmissible the opposition based on Article 8(5) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark, as regards the SPA mark registered in Benelux under No 389 230;

2.	Dismisses the remainder of the application;

3.	Orders OHIM to bear its own costs and to pay those incurred by the applicant;

4.	Orders the intervener to bear its own costs.

(1) OJ C 201 of 7.8.2004

20.8.2005

Official Journal of the European Union

C 205/22

ORDER OF THE COURT OF FIRST INSTANCE

of 2 June 2005

in Case T-326/03 Hippocrate Vounakis v Commission of the European Communities (1)

(Officials - Promotion - Article 90(2) of the Staff Regulations - Prior administrative complaint - Time-limits - Public policy nature - Inadmissibility)

(2005/C 205/39)

Language of the case: French

In Case T-326/03: Hippocrate Vounakis, an official of the Commission of the European Communities, residing in Wezembeek-Oppem (Belgium), represented by J.-N. Louis, E. Marchal, A. Coolen and S. Orlandi, lawyers, with an address for service in Luxembourg, against Commission of the European Communities (Agents: C. Berardis-Kayser and G. Berscheid, with an address for service in Luxembourg) — action for the annulment of the Commission's decision not to promote the applicant to grade A4 under the 2002 promotion procedure — the Court of First Instance (Third Chamber), composed of M. Jaeger, President, V. Tiili and O. Czúcz, Judges; H. Jung, Registrar, made an order on 2 June 2005, the operative part of which is as follows:

1.	The action is dismissed as inadmissible;

2.	Each party shall bear its own costs.

(1) OJ C 289, 29.11.2003.

20.8.2005

Official Journal of the European Union

C 205/22

ORDER OF THE COURT OF FIRST INSTANCE

of 26 May 2005

in Case T-377/04 Bart Nijs v Court of Auditors of the European Communities (1)

(Officials - 2003 Promotion exercise - Decision not to promote - Action for annulment - Prior administrative complaint - Identity of subject-matter and legal basis - Time-limit for lodging a complaint - Manifest inadmissibility)

(2005/C 205/41)

Language of the case: French

In Case T-377/04: Bart Nijs, an official of the Court of Auditors of the European Communities, residing in Bereldange (Luxembourg), represented by F. Rollinger, lawyer, with an address for service in Luxembourg, against the Court of Auditors of the European Communities (Agents: T. Kennedy, J.-M. Stenier and M. Bavendamm, with an address for service in Luxembourg) — action for annulment of the decision of the Court of Auditors of the European Communities not to promote the applicant to grade LA5 in the 2003 promotion exercise — 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 26 May 2005, the operative part of which is as follows:

1.	The action is dismissed as inadmissible.

2.	The parties shall bear their own costs.

(1) OJ C 284 of 20.11.2004.

20.8.2005

Official Journal of the European Union

C 205/23

ORDER OF THE COURT OF FIRST INSTANCE

of 27 May 2005

in Case T-485/04 Agence de coopération des bibliothèques et centres de documentation en Bretagne (COBB) v Commission of the European Communities (1)

(Inadmissibility - Documents not published or notified - Obligation on interested party to request copy within reasonable time-limit - Action brought out of time)

(2005/C 205/42)

Language of the case: French

In Case T-485/04: Agence de coopération des bibliothèques et centres de documentation en Bretagne (COBB), established in Rennes (France), represented by J.-P. Martin, lawyer, against Commission of the European Communities (Agent: L. Flynn, with an address for service in Luxembourg) — action for annulment of the Commission's decision of 9 September 2003 excluding the operation ‘Réseau des périodiques de Bretagne, année 1999’ (Brittany Periodicals Network 1999) from the expenditure eligible under the European Regional Development Fund (ERDF) programme named ‘Objectif 5b Bretagne 1994-1999’ — the Court of First Instance (Second Chamber), composed of M. Pirrung, President, N.J. Forwood and S. Papasavvas, Judges; H. Jung, Registrar, made an order on 27 May 2005, the operative part of which is as follows:

1.	The application is dismissed as manifestly inadmissible.

2.	The application shall bear its own costs and pay those incurred by the Commission.

(1) OJ C 57 of 5.03.2005.

20.8.2005

Official Journal of the European Union

C 205/23

Action brought on 27 May 2005 by Hippocrate Vounakis against the Commission of the European Communities

(Case T-214/05)

(2005/C 205/44)

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 27 May 2005 by Hippocrate Vounakis, residing in Wezembeek-Oppem (Belgium), 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.	annul the decision of the Commission establishing his 2003 Career Development Report;

2.	order the defendant to pay the costs.

Pleas in law and main arguments

By his claim, the applicant seeks annulment of his 2003 Career Development Report. In support of his action, he submits that the contested report infringes Article 43 of the Staff Regulations, their general implementing provisions and the duty to give reasons and is the result of a manifest error of assessment. In that context, the applicant points to several alleged inconsistencies between, on the one hand, the marks awarded to him and, on the other, the associated comments.

20.8.2005

Official Journal of the European Union

C 205/24

Action brought on 27 May 2005 by Marie-Yolande Beau against the Commission of the European Communities

(Case T-215/05)

(2005/C 205/45)

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 27 May 2005 by Marie-Yolande Beau, residing in Paris, represented by Georges Vandersanden and Laure Levi, lawyers.

The applicant claims that the Court should:

—	annul the decision of the appointing authority refusing to accede to the request for recognition of the occupational origin of her disease and charging to her the fees and incidental costs of the doctor nominated by her and half of the fees and incidental costs of the third doctor,

—	order the defendant to pay all of the costs.

Pleas in law and main arguments

In the present proceedings, the applicant is challenging the appointing authority's refusal to accede to her request for recognition, in accordance with Article 73 of the Staff Regulations, of the occupational origin of her disease.

In that regard, she asserts that she began to have serious respiratory problems early in 1996, whereas upon being recruited, in 1988, she was in good health. Furthermore, a decision was taken to invalid her from the service.

In support of the form of order sought, the applicant claims that the medical committee:

—

misunderstood the concept of occupational disease and failed to comply with its terms of reference. In that regard, the applicant asserts that the medical committee did not respond in its report to the question whether the occupational factor was one factor or the factor that triggered her pathology. On that point, the fact that the applicant has continued to suffer certain difficulties after leaving the service does not mean that her pathology could not have an occupational origin. Furthermore, the Commission did not make a finding as to the possible application in the present case of Article 14 of the Staff Regulations,

—	did not give a proper account of the reasons for its findings, in the light of medical reports that were appreciably different,

—	failed to take the relevant medical reports into consideration,

—	based its findings on an incomplete report,

—	subjected the applicant to respiratory functional tests which, unlike a possible provocation test specific to tobacco, which was not carried out, could not be relevant.

20.8.2005

Official Journal of the European Union

C 205/25

Action brought on 3 June 2005 by Marker Völkl International GmbH against Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-217/05)

(2005/C 205/46)

Language in which the application was submitted: 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 3 June 2005 by Marker Völkl International GmbH, established in Baar (Switzerland), represented by J. Bauer, lawyer.

Icon Health & Fitness Italia S.P.A., Perugia (Italy), was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

1.	annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market of 1 April 2005, case number R 708/2004-1;

2.	order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for Community trade mark:	The applicant, Marker Völkl International GmbH
Community trade mark concerned:	The word mark 'MOTION' for goods in Classes 25 and 28 (Application No 2 099 687)
Proprietor of the mark or sign cited in the opposition proceedings:	Icon Health & Fitness Italia S.P.A.
Mark or sign cited in opposition:	The word mark 'FIT MOTION' for goods in Classes 25 and 28 (Community trade mark No 1 775 196)
Decision of the Opposition Division:	Rejection of application No 2 099 687
Decision of the Board of Appeal:	Dismissal of the appeal
Pleas in law:	The decision of the Board of Appeal infringes Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark because there is no likelihood of confusion between the marks in opposition as the mark cited in opposition has no or rather very slight distinctive character and the similarity of the marks in opposition is slight.

20.8.2005

Official Journal of the European Union

C 205/25

Action brought on 6 June 2005 by Marta Andreasen against the Commission of the European Communities

(Case T-219/05)

(2005/C 205/47)

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 6 June 2005 by Marta Andreasen, residing in Barcelona (Spain), represented by Julien Leclère and Jean-Marie Verlaine, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

—

annul the Commission's decision of 13 October 2004 to remove the applicant from her post (SEC 2004 12 57 FINAL) taken in the case Andreasen Marta v Commission and, accordingly, reinstate the applicant in her post as a Community official with an identical category and grade (namely A2 — AD15) for breach of Articles 6(1) of the ECHR and Articles 6, 9, 10 and 24 of Annex IX to the Staff Regulations;

—

order the Commission of the European Communities to pay an indemnity for the financial loss suffered by the applicant, equivalent to the amount of the salary owed from the time the contested decision took effect until the date of judgment to be delivered by the Court of First Instance, namely EUR 12 300 per month lapsed;

—	order the Commission of the European Communities to pay the amount of EUR 1 000 000 by way of compensation for the non-pecuniary loss suffered;

—

in the alternative, if the Court of First Instance does not uphold the applicant's principal claim, order the Commission of the European Communities to pay an overall amount equivalent to:

(i)	the entire salary of the applicant owing to the age of 65 (official retirement age);

(ii)	the appurtenant contribution into the applicant's pension fund;

(iii)

EUR 1 000 000 by way of compensation for the non-pecuniary loss;

—	order the Commission to pay EUR 12 000 to cover the expenses incurred by the applicant which are not included in costs;

—	order the Commission to pay all costs.

Pleas in law and principal arguments

The applicant was appointed to the posts of Commission Accounting Officer and Budget Execution Director by decision of 11 December 2001. On 22 May 2002 she was removed from the post of Accounting Officer. She was suspended with effect from 28 August 2002 and disciplinary proceedings were commenced against her. A Disciplinary Board was established in March 2004. Following the recommendations of that board, the applicant was removed from her posts by the contested decision.

By her first plea, the applicant claims that the proceedings which led to her removal from here posts were null and void because the conditions of impartiality and independence provided for in Article 8 of Annex IX to the Staff Regulations and Article 6 of the European Convention on Human Rights were not met in the present case. She argues, first, that the members of the Commission who were behind the accusations made against her were also part of the appointing authority which took the decision to remover her from her posts and, second, that the Disciplinary Board was composed entirely of Commission officials, with exception of one person.

By her second plea, the applicant argues, first, that the decision to remover her from her posts is a second disciplinary measure taken against her, on the basis of the same facts which led to her suspension and, accordingly, was imposed in breach of Article 9 of Annex IX to the Staff Regulations. She argues, as part of the same plea, that the time-limits provided for in Article 24 of the same annex have been exceeded. According to the applicant, that tardiness is also a breach of Article 6 of the European Convention on Human Rights. The applicant also claims that the contested decision did not contain a statement of reasons and that the sanction imposed on her was disproportionate.

20.8.2005

Official Journal of the European Union

C 205/26

Action brought on 7 June 2005 by Kurt Jacobs against the Commission of the European Communities

(Case T-220/05)

(2005/C 205/48)

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 7 June 2005 by Kurt Jacobs, residing in Bruges (Belgium), represented by Lucas Vogel, lawyer.

The applicant claims that the Court should:

annul the decision adopted by the Appointing Authority on 11 February 2005, notified on 14 February 2005 and received on 27 February 2005, rejecting the complaint brought by the applicant on 16 November 2004, by which he sought annulment of three decisions adopted on 16 August 2004, 24 August 2004 and 31 August 2004 insofar as they determined his grade on recruitment as B*3, step 2, and fixed his remuneration at a basic salary of EUR 3 101,85;

2.	in addition, to the extent necessary, annul the decisions against which that complaint was brought, dated 16 August 2004, 24 August 2004 and 31 August 2004;

3.	order the Commission to pay damages in the sum of EUR 250 000.

Pleas in law and main arguments

The applicant was a candidate for external competition COM/B/1/02 intended to constitute a reserve for future recruitment for administrative assistants of grade B5 or B4. Having been successful in that competition, he received an offer of a post from Commission DG RELEX by electronic mail on 20 April 2004. On 21 April 2004 he accepted that offer. However, the instrument of appointment was not drawn up until 31 August 2004 since the applicant first had to terminate the contract between him and his previous employer. By application of the new provisions of the Staff Regulations which came into force on 1 May 2004, he was recruited at grade B*3, step 2, although the former grade B5, stated in the notice of competition, corresponds to the new grade B*5. His basic salary was, therefore, significantly lower than it would have been under the former system.

The applicant therefore seeks annulment of the contested decisions relating to his appointment and the setting of his grade and compensation for the loss which he alleges he has suffered. Under his first plea, he alleges infringement of the principle of legitimate expectations, of the duty of the administration to have regard for the interests of officials and of the binding provisions of the notice of competition. In that context, he also submits that the decision appointing him was, in reality, taken before the entry into force of the new Staff Regulations by the exchange of electronic mails on 20 and 21 April 2004.

Furthermore, by his second plea, the applicant alleges infringement of the principle of non-discrimination, on the ground that he was appointed to a grade lower than that stated in the notice of competition and to which other successful candidates from the same competition were recruited.

20.8.2005

Official Journal of the European Union

C 205/27

Action brought on 10 June 2005 by Olivier Chassagne against the Commission of the European Communities

(Case T-224/05)

(2005/C 205/49)

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 10 June 2005 by Olivier Chassagne, residing in Brussels, represented by Stéphane Rodrigues and Yola Minatchy, lawyers.

The applicant claims that the Court should:

—	declare unlawful, and therefore inapplicable to the applicant, Article 8 of Annex VII to the new Staff Regulations of Officials of the European Communities;

—	award the applicant EUR one (1) by way of compensation for the non-pecuniary damage sustained and the sum of EUR seven thousand three hundred and seventy two (7 372) by way of compensation for the financial damage sustained;

—	order the defendant to pay all of the costs.

Pleas in law and main arguments

The applicant, an official of the Commission, is originally from the island of La Réunion, a French overseas department. He brought the present action following the rejection of a complaint which he had lodged against his payslip for August 2004, containing reimbursement of his annual travelling expenses.

In support of his action, the applicant claims that Article 8 of Annex VII to the Staff Regulations, relating to reimbursement of officials' annual travelling expenses to their place of origin, is unlawful. He contends that that provision is contrary to Community law in that it gives rise to unequal treatment connected with the place of origin of officials and also to discrimination contrary to Articles 12 EC and 299 EC as against officials originating from French overseas departments, and also as regards nationality, the fact of belonging to a language minority, ethnic origin or race.

The applicant also claims that that provision infringes other general principles of Community law, such as the obligation to state reasons and the principles of proportionality, transparency and sound administration, and also the principle of legitimate expectations and legal certainty.

20.8.2005

Official Journal of the European Union

C 205/28

Action brought on 17 June 2005 by Guido Strack against the Commission of the European Communities

(Case T-225/05)

(2005/C 205/50)

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 17 June 2005 by Guido Strack, residing in Cologne (Germany), represented by J. Mosar, lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

—	take cognisance of the application lodged by the applicant under Article 91 of the Staff Regulations;

—	declare the application to be admissible and well-founded;

—	set aside the defendant's decision of 22 March 2005 rejecting the appeal;

—	set aside the defendant's decision of 19 November 2003 rejecting the application for the post;

—	set aside competition procedure COM/A/057/04;

—	order the defendant to pay damages to the applicant in the amount of EUR 5 000 in respect of the non-material damage suffered by him on account of the unlawfully implemented selection procedure and the decision to reject him, which was delayed and notified to him only after repeated requests;

—	order the Commission to pay all of the costs.

Pleas in law and main arguments

The applicant took part in selection procedure COM/A/057/04. By letter of 19 November 2004 the defendant informed the applicant that his application had not been considered. The appeal which the applicant made against this decision was rejected by the European Commission in its decision of 18 March 2005. The present application seeks to have the appointing authority's decision of 19 November 2004 in the form of its appeal decision of 18 March 2005 set aside and also to have selection procedure COM/A/057/04 set aside.

The applicant is relying on five grounds to support his application. Firstly he asserts that the selection procedure infringes the European Commission's Decision of 28 April 2004 regarding the middle management level (C(2004) 15997, VM 73-2004) as the pre-selection body did not include any member of another Directorate-General. Furthermore, it is claimed that there is an infringement of Article 11 and Article 22a(3) of the Staff Regulations of Officials of the European Communities by reason of the participation of two members of the pre-selection body in the selection of candidates. Thirdly, the applicant submits that Articles 2, 4, 5, 7 and 29 of the Staff Regulations of Officials of the European Communities have been infringed as the appointing authority did not choose the most suitable candidate. In addition, he claims that the decision of 19 November 2004 rejecting his candidature infringes Article 25 of the Staff Regulations of Officials of the European Communities as the justification for it is not given. Lastly, the applicant submits that there has been a breach of the principle of good administration under Article 41 of the Charter of fundamental rights of the European Union and of the duty to have regard for the welfare of officials as he was not properly informed that the post had been filled by someone else.

20.8.2005

Official Journal of the European Union

C 205/28

Action brought on 14 June 2005 by Dimitra Lantzoni against the Court of Justice of the European Communities

(Case T-226/05)

(2005/C 205/51)

Language of the case: French

An action against the Court of Justice of the European Communities was brought before the Court of First Instance of the European Communities on 14 June 2005 by Dimitra Lantzoni, residing in Luxembourg, represented by Michèle Bouché, lawyer.

The applicant claims that the Court should:

—	order the Court of Justice to pay EUR 50 000 as compensation for the non-material loss suffered by the applicant as a result of serious irregularities that have led to the blocking of her career;

—	order the defendant to pay the costs.

Pleas in law and main arguments

On 3 June 2004 the applicant, an official of the Court of Justice, lodged a claim for compensation for the material and non-material loss that she alleges she has suffered as a result of the blocking of her career since the new promotion system was introduced in 2000. Both that claim and her complaint having been rejected, the applicant has brought this action. In support of her heads of claim, she argues that the alleged blocking of her career, and also the material and non-material loss that she has allegedly suffered, are due to serious and repeated irregularities and failures to act on the part of the Court's administration, as regards both her staff reports and the number of promotion points awarded on that basis.

20.8.2005

Official Journal of the European Union

C 205/29

Action brought on 13 June 2005 by Vesselina Ranguelova against the Commission of the European Communities

(Case T-227/05)

(2005/C 205/52)

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 13 June 2005 by Vesselina Ranguelova, residing in Bergen (Netherlands), represented by Sébastien Orlandi, Xavier Martin, Albert Coolen and Etienne Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

1.	annul the Commission's decision fixing her classification in Grade A*6;

2.	order the defendant to pay the costs.

Pleas in law and main arguments

The applicant was recruited by the Commission as a member of the temporary staff, for a post for which the level of responsibility had been fixed in the vacancy notice by reference to Grades A7 to A4, which, according to the new system, are equivalent to Grades A*8 to A*12. Upon recruitment, however, the applicant's classification was fixed at Grade A*6.

The applicant contests that decision and relies on the same pleas in law as the applicant in Case T-196/05.

20.8.2005

Official Journal of the European Union

C 205/29

Action brought on 15 June 2005 by AEPI A.E. against the Commission of the European Communities

(Case T-229/05)

(2005/C 205/53)

Language of the case: Greek

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 15 June 2005 by Elliniki Etairia pros Prostasian tis Pnevmatikis Idioktisias, a company established in Maroussi, Attica, represented by T. Asprogerakas-Grivas, lawyer.

The applicant claims that the Court should:

—	annul the contested measure of the European Commission as unlawful and declare that the entire policy applied by the companies complained of, which manage related rights, infringes Community law;

—	uphold in its entirety the applicant's complaint under reference 2001/4372,56(2001)A/3603/2 rejected by the contested measure;

—	order the European Commission to pay the costs of the proceedings and the fees of the applicant's lawyer.

Pleas in law and main arguments

The applicant, which is a company for the collective management of musical intellectual-property rights in Greece, lodged a complaint with the European Commission alleging infringement of Articles 81 and 82 EC by the companies Erato, Apollon and Grammo, which are responsible for the management of related rights of, respectively, singers, musicians who play an instrument, and record companies and producers. In its complaint, the applicant maintained that those companies, which hold a monopoly in Greece over related rights in the foregoing sectors, acting in concert set very high charges in respect of related rights, with the result that many entertainment undertakings, not being able to pay them, stopped using music in their premises and writers of music, members of the applicant, were also deprived of their intellectual property rights.

The applicant seeks the annulment of the Commission decision which rejected its complaint. It submits that the Commission mistakenly considered that there was no risk of misfunctioning of the common market because all the parties involved were established in Greece. According to the applicant, the mere fact that an infringement of the competition rules occurs exclusively within just one Member State is not sufficient for the infringement to be considered insubstantial. The applicant further submits that the Commission failed to examine all the grounds of the complaint lodged. Finally, the applicant pleads that the infringement relied upon may affect inter-State trade.

20.8.2005

Official Journal of the European Union

C 205/30

Action brought on 24 June 2005 by Golf USA Inc. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-230/05)

(2005/C 205/54)

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 24 June 2005 by Golf USA Inc., established in Oklahoma City, Oklahoma, USA, represented by A.H. de Bosch Kemper-de Hilster, lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

—	annul the contested decision of the Second Board of Appeal of the OHIM of 25 April 2005 in Case R 823/2004-2 (GOLF-USA);

—	order the defendant to bear the costs.

Pleas in law and main arguments

Community trade mark concerned:	Word mark GOLF USA for goods and services in classes 25 (sports, leisure shoes, outer clothes etc.), 28 (sport articles including golf clubs) and 35 (commercial retailing services of sport articles)
Decision of the examiner:	Refuses the application in total
Decision of the Board of Appeal:	Dismisses the appeal
Pleas in law:	Violation of Article 7(1)(b) and (c) of Council Regulation No 40/94.

20.8.2005

Official Journal of the European Union

C 205/30

Action brought on 15 June 2005 by Corsica Ferries France against Commission of the European Communities

(Case T-231/05)

(2005/C 205/55)

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 15 June 2005 by Corsica Ferries France, established in Bastia (France), represented by Stéphane Rodrigues and Alice Jaume, lawyers.

The applicant claims that the Court should:

1.	Annul the Commission Decision of 16 March 2005 concerning the second tranche of restructuring aid paid by France to National Maritime Corse-Méditerranée (SNCM);

2.	Order the Commission to pay the costs.

Pleas in law and main arguments

This action is brought against Commission Decision C(2004)4751 final of 16 March 2005 declaring payment of the second tranche of aid given by France to Société Nationale Maritime Corse-Méditerranée (SNCM) for restructuring to be compatible, with certain conditions, with the common market (Aid No C 58/2002, ex N 118(2002)). That decision is a follow-up to the decision of 9 July 2003, which authorised subject to conditions the first tranche of the restructuring aid at issue.

In support of its claims, the applicant pleads the infringement of Article 87 of the EC Treaty and the rules adopted for its application which are relevant in this case, namely the conditions imposed by the decision of 9 July 2003 and the conditions arising from the Commission's 1997 Community guidelines on State aid to maritime transport (1) and the Commission's 1999 Community Guidelines on State aid for rescuing and restructuring firms in difficulty (2), as applicable at the time when the examination procedure for the contested aid was opened.

The applicant states in that connection that, contrary to the decision of 9 July 2003, SNCM's shares in the Compagnie Corse Meditérranée were not sold. Furthermore, SNCM continued to apply a pricing policy aiming to offer lower prices than its competitors.

Furthermore, as regards the abovementioned Community guidelines, the restructuring plan submitted by the French Republic was not fully implemented. In addition, the amount of aid was not limited to the strict minimum.

(1) OJ C 205 of 5.7.1997, p. 5

(2) OJ C 288 of 9.10.1999, p. 2

20.8.2005

Official Journal of the European Union

C 205/32

Action brought on 17 June 2005 by Willem Aldershoff against the Commission of the European Communities

(Case T-236/05)

(2005/C 205/58)

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 17 June 2005 by Willem Aldershoff, residing in Brussels, 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:

—	annul the decision approving his career development report for the period from 1 January 2003 to 31 December 2003,

—	order the defendant to pay the costs.

Pleas in law and main arguments

In support of his action, the applicant alleges manifest error of assessment on account of the fact that he was not given the assessment ‘Exceptional’ or ‘Very good’ for his performance, although he had attained, and even exceeded, his objectives despite particular problems encountered in this work-place.

The applicant then refers to alleged inconsistency between, on the one hand, the remarks made in the contested report which demonstrate improvement in that he exceeded his objectives and, on the other, the marks awarded him which were below average.

Last, the applicant alleges lack of a relevant statement of reasons for the contested decision.

20.8.2005

Official Journal of the European Union

C 205/32

Action brought on 17 June 2005 by Editions Odile Jacob SAS against the Commission of the European Communities

(Case T-237/05)

(2005/C 205/59)

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 17 June 2005 by Editions Odile Jacob SAS, established in Paris, represented by W. van Weert and O. Fréget, lawyers.

The applicant claims that the Court should:

annul the contested decision, in which the Commission refused to send to the applicant documents which it had requested, since:

—	the Commission did not specifically and individually examine each of the documents to which the applicant was seeking access;

—	the Commission wrongly applied the exceptions under Article 4(2) of Regulation No 1049/2001;

—	the Commission infringed in any event the applicant's right to partial access to the documents requested;

—	the Commission infringed the principle of proportionality by not balancing application of the exceptions under Article 4(2) of Regulation No 1049/2001 with the higher interest justifying the disclosure of the documents.

2.	order the Commission to pay the costs.

Pleas in law and main arguments

The applicant has brought two actions for annulment before the Court of First Instance, the first (Case T-279/04) (1) being against the Commission's decision of 7 January 2004 declaring the concentration operation whereby Lagardere was to acquire exclusive control of the assets of Vivendi Universal Publishing, subject to honouring the latter's undertakings, compatible with the common market (COMP.M/2978 — Lagardere/Natexis/VUP), and the second (Case T-452/04) (2) being against the Commission's decision of 30 July 2004, concerning the approval of Wendel Investment as the acquirer of the assets surrendered in accordance with the decision of 7 January 2004.

On 27 January 2005, the applicant asked the Commission, on the strength of Article 255 EC and Regulation No 1049/2001, for access to certain documents concerning that case. The Commission sent only one of the documents requested, maintaining that the others were covered by exceptions to the principle of public access to documents. On 18 February 2005, the applicant made a confirmatory application, which was likewise rejected by the Commission on 7 April 2005.

In support of its action against that latter decision, the applicant argues that it is void because it was based on an examination by categories of document requested and not on a specific and individual examination of each document.

It also argues that the Commission made clear errors of assessment in applying each of the exceptions under Article 4(2) of Regulation No 1049/2001, which it relied upon in dismissing the request. More particularly, the exceptions concern protection of the purpose of investigation activities, the protection of commercial interests, the protection of the decision-making process, and the protection of the Commission's legal opinions. In the applicant's submission, the Commission has not applied any of those exceptions correctly.

The applicant also claims that the Commission has infringed its right to at least partial access to the documents concerned.

Finally, the applicant claims that the proportionality principle has been infringed because the Commission did not balance the exceptions referred to in Article 4(2) of Regulation No 1049/2001 against the higher public interest justifying disclosure of the documents requested.

(1) OJ C 262 of 23.10.04, p. 33

(2) OJ C 45 of 19.02.05, p. 24

20.8.2005

Official Journal of the European Union

C 205/33

Action brought on 1 July 2005 by The Black & Decker Corporation against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-239/05)

(2005/C 205/60)

Language in which the application was lodged: English

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 1 July 2005 by The Black & Decker Corporation, established in Towson, Maryland (USA), represented by P. Harris, Solicitor.

Atlas Copco Aktiebolag, established in Stockholm (Sweden), was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

—	annul the contested decision of the First Board of Appeal of the OHIM of 19 April 2005 (Case R 727/2004-1);

—	declare opposition proceedings B497 596 inadmissible;

—	order that the costs occasioned by the applicant in the course of the present proceedings and its appeal be borne by the OHIM.

Pleas in law and main arguments:

Applicant for Community trade mark:	The applicant
Community trade mark concerned:	Coloured three-dimensional mark in black and yellow, in the form of a tool for goods in Class 7 (manually operated portable electric power tools etc.)
Proprietor of mark or sign cited in the opposition proceedings:	Atlas Copco Aktiebolag
Trade mark or sign cited in opposition:	Non-registered trade marks and signs, used in the course of trade in all Member States for power tools.
Decision of the Opposition Division:	Rejects opposition as inadmissible
Decision of the Board of Appeal:	Annuls the contested decision and remits the case to the Opposition Division for further prosecution
Pleas in law:	The applicant claims that the opposition should have been declared inadmissible as it did not identify sufficiently clearly the earlier marks and signs relied on, in violation of Rule 18(1) of Regulation No 2868/95 (1)

(1) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark, OJ L 303, 15/12/1995 p. 1

20.8.2005

Official Journal of the European Union

C 205/34

Action brought on 1 July 2005 by The Black & Decker Corporation against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-240/05)

(2005/C 205/61)

Language in which the application was lodged: English

Atlas Copco Aktiebolag, established in Stockholm (Sweden), was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

—	annul the contested decision of the First Board of Appeal of the OHIM of 19 April 2005 (Case R 729/2004-1);

—	declare opposition proceedings B490 336 inadmissible;

—	order that the costs occasioned by the applicant in the course of the present proceedings and its appeal be borne by the OHIM.

Pleas in law and main arguments

Applicant for Community trade mark:	The applicant
Community trade mark concerned:	Coloured three-dimensional mark in black and yellow, in the form of a tool for goods in Class 7 (manually operated portable electric power tools etc.)
Proprietor of mark or sign cited in the opposition proceedings:	Atlas Copco Aktiebolag
Trade mark or sign cited in opposition:	Non-registered trade marks and signs, used in the course of trade in all Member States for power tools.
Decision of the Opposition Division:	Rejects opposition as inadmissible
Decision of the Board of Appeal:	Annuls the contested decision and remits the case to the Opposition Division for further prosecution
Pleas in law:	The applicant claims that the opposition should have been declared inadmissible as it did not identify sufficiently clearly the earlier marks and signs relied on, in violation of Rule 18(1) of Regulation No 2868/95 (1).

(1) Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark, OJ L 303, 15/12/1995, p. 1.

20.8.2005

Official Journal of the European Union

C 205/35

Action brought on 29 June 2005 by The Procter & Gamble Company against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-241/05)

(2005/C 205/62)

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 29 June 2005 by The Procter & Gamble Company, established in Cincinnati, Ohio (USA), represented by G. Kuipers, lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

—	annul the Decision of the First Board of Appeal of the OHIM of 14 April 2005 in Case R 843/2004-1 in so far as it finds that the mark does not satisfy the conditions laid down in Article 7(1)(b) of Regulation No 40/94;

—	order the OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned:	The three dimensional mark consisting of a square white tablet showing a lilac six petalled floral design for goods in class 3 (Washing and bleaching preparations and other substances for laundry use; preparations for the washing cleaning and care of dishes; soaps;...) — application No 1 683 523
Decision of the examiner:	Refusal of the application
Decision of the Board of Appeal:	Dismissal of the appeal
Pleas in law:	Violation of Article 7(1)(b) of Council Regulation No 40/94

20.8.2005

Official Journal of the European Union

C 205/35

Action brought on 27 June 2005 by AEPI A.E. against the Commission of the European Communities

(Case T-242/05)

(2005/C 205/63)

Language of the case: Greek

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 27 June 2005 by Elliniki Etairia pros Prostasian tis Pnevmatikis Idioktisias, a company established in Maroussi, Attica, represented by T. Asprogerakas-Grivas, lawyer.

The applicant claims that the Court should:

—	annul the contested measures;

—	entertain and hear the original complaint as to its substance;

—	uphold the applicant's original complaint in its entirety;

—	order the European Commission to pay the costs of the proceedings and the fees of the applicant's lawyer.

Pleas in law and main arguments

The applicant, which is a company for the collective management of musical intellectual-property rights in Greece, lodged a complaint with the European Commission referring to Article 226 EC, seeking a finding that the Greek Minister for Culture had infringed the competition rules (Article 81 EC) by the creation, as pleaded, of monopolistic situations on the grant of licences to bodies engaging in the collective management of intellectual-property rights and related rights.

By letter dated 7 December 2004 under reference COMP/C2/PK/pm/D/906((2004), the Commission informed the applicant that it proposed to take no further action on the matter, while inviting the applicant to inform it of any new matters which could prove that there was an infringement. By a subsequent letter dated 20 April 2005 under reference Comp/C2/PK/LVP/D/219/2005, the Commission informed the applicant that it was definitively rejecting its complaint.

The applicant seeks the annulment of those decisions. It contends first of all that there is a complete lack of reasons for the decision of 20 April 2005 which, in its submission, took no account whatsoever of the new matters relied upon by it in answer to the letter of 7 December 2004. It further submits that the Greek Minister of Culture discriminated against it since it granted all the other collective-management bodies a licence in respect of all the fields requested, while in the case of the applicant it granted a licence only for intellectual property-rights, and not for related rights too as the applicant had requested. The applicant submits that that was done intentionally in order to create monopolistic situations. The applicant also pleads breach of the prohibition of discrimination on grounds of nationality since, in its view, holders of related rights who are not Greek cannot choose in Greece whichever company they want and entrust it with management of their related rights. Finally, the applicant considers that the practice of which it complained concerns a large part of the intellectual-property market, and not a limited part — the view taken in the contested measures.

20.8.2005

Official Journal of the European Union

C 205/36

Action brought on 30 June 2005 by the Hellenic Republic against the Commission of the European Communities

(Case T-243/05)

(2005/C 205/64)

Language of the case: Greek

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 30 June 2005 by the Hellenic Republic.

The applicant claims that the Court should:

—	Annul the Commission's contested decision; or

—	Alter it in accordance with the specific matters set out in the application;

—	Order the Commission to pay the costs.

Pleas and main arguments

By its contested decision the Commission, effecting clearance of accounts under Regulation (EEC) No 729/70, excluded from Community financing various expenditure incurred by the Hellenic Republic in regard to arable crops, olive oil and financial control, with the result that those amounts were not recognised as lawful Community financing and were charged to the Hellenic Republic.

In support of its application, the applicant pleads that the Commission did not have competence to impose the corrections at issue inasmuch as they relate to expenditure effected by the Member State at a time prior to the 24 months before the Commission's initial notification in connection with that expenditure.

Moreover, as regards the 5 % financial correction effected in the sector of arable crops imposed by the contested decision on the ground that the competent Greek services, notwithstanding progress made by them continued to make payments even in circumstances where claims had demonstrably not been checked correctly, the applicant calls in question the factual circumstances relied on by the Commission and pleads an error as to the facts and erroneous reasoning in the contested decision. It further invokes infringement of the Commission's guidelines at VI/75330/97, breach of the principle of proportionality, misappraisal of the facts and incorrect justification in connection with the amount of the 5 % financial correction.

In regard to the correction in respect of financial control, the applicant pleads that the payment arrears in regard to which the corrections at issue were imposed are attributable either to the need to effectuate supplementary checks owing to the major discrepancy found in contrast to areas declared or to exceptional circumstances, namely the submission and examination of objections concerning erroneous entries detected in the database after payments had been made or, in one specific case, to a suspension of works owing to force majeure.

20.8.2005

Official Journal of the European Union

C 205/37

Action brought on 1 July 2005 by Gibtelecom Limited against the Commission of the European Communities

(Case T-244/05)

(2005/C 205/65)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 1 July 2005 by Gibtelecom Limited, established in Europort (Gibraltar), represented by M. Llamas, Barrister, B. O'Connor, Solicitor, and S. Brummel, lawyer.

The applicant claims that the Court should:

—	annul the Commission's decision, notified to Gibtelecom by a letter dated 26 April 2005 (Reference No. 1982), by which the Commission implicitly rejected the complaint brought by Gibtelecom against Spain under Article 86 EC in conjunction with Article 49 EC and/or 12 EC;

—	order the Commission to pay Gibtelecom's costs.

Pleas in law and main arguments

By the contested decision the Commission rejected a complaint by the applicant filed on 31 October 1996 and alleging that the Spanish telecommunications operator, Telefonica SA, had committed a series of abuses of dominant position contrary to Article 82 EC in refusing to recognise Gibraltar's International Dialling Code (‘350’) and insisting on acceptance of restrictive conditions for the exchange of automatic direct dial traffic between Spain and Gibraltar. The applicant later converted that complaint into a complaint under Article 86 EC, in conjunction with Articles 82 EC, 49 EC and 12 EC against Spain, alleging that Telefonica was acting under instructions from the Spanish Government which claims sovereignty over Gibraltar.

In support of its application, the applicant invokes a series of alleged manifest errors of assessment of the contested decision. According to the applicant, the Commission erred in considering that Telefonica is not a public undertaking or that it enjoys special rights within the meaning of Article 86 EC.

The applicant further alleges that, by giving instructions to Telefonica to refuse the ITU-assigned 350 IDD code for Gibraltar, Spain created and maintained discriminatory obstacles to the free movement of telecommunications services, contrary to Article 49 EC. Further, the applicant considers that the Spanish State's refusal to recognise this code produces discriminatory treatment based on nationality and residence and is contrary to the prohibition on discrimination in Article 12 EC.

The applicant also maintains that by considering, in the contested decision, that a suitable solution in the numbering problem should be found through direct bilateral discussions between Spain and the United Kingdom, the Commission has committed a further manifest error of assessment since, according to the applicant, there is no suitable alternative to the Commission's intervention.

The applicant also puts forward a number of procedural and administrative grounds for annulment. The applicant refers, in this context, to an alleged violation of the Commission's duty, under Article 253 EC, to state adequate reasons for its decision, as well as a violation of the applicant's legitimate expectations which allegedly arose from a letter sent on 7 June 2000 by three members of the Commission to Spain and the United Kingdom, requesting the two countries, amongst other things, find a solution to the numbering complaint. The applicant further submits, in the context of the same plea, that the Commission has failed to act impartially and that it has breached the principle requiring it to act within a reasonable period.

		ISSN 1725-2423
Official Journal of the European Union		C 205

English edition	Information and Notices	Volume 48 20 August 2005

Notice No	Contents	page
	I Information
	Court of Justice
	COURT OF JUSTICE
2005/C 205/1	Judgment of the Court (Grand Chamber) of 28 June 2005 in Joined Cases C-189/02 P, C-202/02 P, C 205/02 P to C 208/02 P and C 213/02 P: Dansk Rørindustri A/S and Others v Commission of the European Communities (Appeal — Competition — District heating pipes (pre-insulated pipes) — Article 85(1) of the EC Treaty (now Article 81(1) EC) — Cartel — Boycott — Fines — Guidelines on the method of setting fines — Non-retroactivity — Legitimate expectations — Lawfulness — Leniency notice — Obligation to state reasons)	1

2005/C 205/2	Judgment of the Court (Fifth Chamber) of 30 June 2005 in Case C-165/03 (Reference for a preliminary ruling from Landgericht Stuttgart): Mathias Längst, interested parties SABU Schuh & Marketing GmbH and Others (Directive 69/335/EEC — Indirect taxes on the raising of capital — Notary's charges — Notary employed as a civil servant — Payment to the State of a fixed portion of the charges)	2

2005/C 205/3	Judgment of the Court (Second Chamber) of 12 May 2005 in Case C-287/03: Commission of the European Communities v Kingdom of Belgium (Failure of Member State to fulfil obligations — Freedom to provide services — Customer loyalty programmes — Burden of proof)	2

2005/C 205/4	Judgment of the Court (Second Chamber) of 30 June 2005 in Case C-295/03 P: Alessandrini Srl and Others v Commission of the European Communities (Appeal — Bananas — Third-country imports — Regulation (EC) No 2362/98 — Import licences for bananas from ACP States — Measures under Article 20(d) of Regulation (EEC) No 404/93 — Non-contractual liability of the Community)	2

2005/C 205/5	Judgment of the Court (First Chamber) of 30 June 2005 in Case C-537/03: Reference for a preliminary ruling from the Korkein Oikeus in Katja Candolin and Others. v Vahinkovakuutusosakeyhtiö Pohjola and Others (Compulsory motor vehicle insurance — Directives 84/5/EEC and 90/232/EEC — Rules on civil liability — Passenger's contribution to the loss or injury — Refusal or limitation of the right to compensation)	3

2005/C 205/6	Judgment of the Court (Third Chamber) of 12 May 2005 in Case C-542/03: Reference for a preliminary ruling from the Bundesfinanzhof in Hauptzollamt Hamburg-Jonas v Milupa GmbH & Co. KG (Agriculture — Export refunds — Agricultural products which are processed and incorporated into goods not covered by Annex II of the EC Treaty (now, after amendment, Annex I EC) — Inaccurate declaration — Sanction)	3

2005/C 205/7	Judgment of the Court (Second Chamber) of 30 June 2005 in Case C-28/04 (Reference for a preliminary ruling from the Tribunal de grande instance de Paris): Tod's SpA, Tod's France SARL v Heyraud SA (Equal treatment — Principle of non-discrimination on grounds of nationality — Copyright and related rights)	4

2005/C 205/8	Judgment of the Court (First Chamber) of 2 June 2005 in Case C-174/04: Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Article 56 EC — Automatic suspension of voting rights in privatised undertakings)	4

2005/C 205/9	Judgment of the Court (First Chamber) of 30 June 2005 in Case C-286/04 P: Eurocermex SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Appeal — Community trade mark — Article 7(1)(b) and (3) of Regulation (EC) No 40/94 — Three-dimensional shape of a long-neck bottle in the neck of which a slice of lemon has been plugged — Absolute ground for refusal — Distinctive character)	5

2005/C 205/0	Judgment of the Court (Fifth Chamber) of 30 June 2005 in Case C-30/05: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil its obligations — Directives 1999/45/EC and 2001/60/EC — Failure to transpose within the prescribed period)	5

2005/C 205/1	Case C-233/05: Reference for a preliminary ruling from the Gerechtshof te 's-Hertogenbosch by judgment of that court of 16 February 2005 in V.O.F. Dressuurstal Jespers v Inspecteur van de Belastingsdienst/Zuidwest/kantoor Breda van de Rijksbelastingdienst	6

2005/C 205/2	Case C-234/05: Reference for a preliminary ruling from the Hof van Beroep te Brussel by judgment of that court of 25 May 2005 in 1. The Belgian State, represented by the Minister for Social Affairs, 2. The Belgian State, represented by the State Secretary for Public Health v BVBA De Backer	6

2005/C 205/3	Case C-235/05 P: Appeal brought on 28 May 2005 by L'Oréal SA against the judgment delivered on 16 March 2005 by the Second Chamber of the Court of First Instance of the European Communities in Case T-112/03 between L'Oréal SA and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), the other party to the proceedings before the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) having been Revlon Suisse SA	7

2005/C 205/4	Case C-238/05: Reference for a preliminary ruling from the Tribunal Supremo (Spain) by order of that court of 13 April 2005 in the case of Asnef-Equifax Servicios de Información sobre Solvencia y Crédito, S.L. and Administración del Estado v Asociación de Usuarios de Servicios Bancarios (AUSBANC)	7

2005/C 205/5	Case C-242/05: Reference for a preliminary ruling from the Gerechtshof te 's-Hertogenbosch by order of that court of 31 May 2005 in G.M. van de Coevering v Rijksbelastingdienst	8

2005/C 205/6	Case C-244/05: Reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Bavarian Higher Administrative Court) by order of that court of 19 April 2005 in Bund Naturschutz in Bayern e.V. v Freistaat Bayern	8

2005/C 205/7	Case C-248/05: Action brought on 14 June 2005 by Commission of the European Communities against Ireland	9

2005/C 205/8	Case C-245/05: Reference for a preliminary ruling from the Finanzgericht Dusseldorf by order of that court of 6 June 2005 in Metro International GmbH v Hauptzollamt Dusseldorf	10

2005/C 205/9	Case C-251/05: Reference for a preliminary ruling from the Court of Appeal (England and Wales), Civil Division, by order of that court of 21 July 2004, in Talacre Beach Caravan Sales Ltd v Commissioners of Customs and Excise	10

2005/C 205/0	Case C-252/05: Reference for a preliminary ruling from the High Court of Justice (England and Wales), Queen's Bench Division (Administrative Court), Divisional Court, by order of that court of 20 May 2005 in The Queen on the application of Thames Water Utilities Ltd v South East London Division, Bromley Magistrates' Court, Intervener: The Environment Agency	11

2005/C 205/1	Case C-254/05: Action brought on 16 June 2005 by the Commission of the European Communities against the Kingdom of Belgium	11

2005/C 205/2	Case C-255/05: Action brought on 16 June 2005 by the Commission of the European Communities against the Italian Republic	12

2005/C 205/3	Case C-256/05: Reference for a preliminary ruling from the Telekom-Control-Kommission by application of 13 June 2005 in a procedure concerning Telekom Austria AG	13

2005/C 205/4	Case C-261/05: Reference for a preliminary ruling from the Komárom-Esztergom Megyei Bíróság by order of that court of 29 April 2005 in Lakél Kft., Pár-Bau Kft. and Rottelma Kft. v Komárom-Esztergom Megyei Közigazgatási Hivatal	13

2005/C 205/5	Case C-262/05: Action brought on 22 June 2005 by the Commission of the European Communities against the Republic of Austria	13

2005/C 205/6	Case C-264/05: Action brought on 22 June 2005 by the Commission of the European Communities against the Federal Republic of Germany	14

	COURT OF FIRST INSTANCE
2005/C 205/7	Election of the President of a Chamber composed of three Judges	15

2005/C 205/8	Assignment of Judges to the Chambers	15

2005/C 205/9	Judgment of the Court of First Instance of 15 June 2005 in Case T-17/02 Fred Olson SA v Commission of the European Communities (State aid — Maritime transport — Existing aid — New aid — Service of general economic interest)	17

2005/C 205/0	Judgment of the Court of First Instance of 15 June 2005 in Case T-171/02 Regione autonoma della Sardegna v Commission of the European Communities (State aid — Aid scheme for the restructuring of small agricultural enterprises — Aid affecting trade between Member States and distorting or threatening to distort competition — Guidelines on State aid for rescuing and restructuring firms in difficulty — Conditional decision — Time-limits applicable to the procedure for controlling State aid — Protection of legitimate expectations — Statement of reasons — Intervention — Intervener's claims, pleas and arguments)	17

2005/C 205/1	Judgment of the Court of First Instance of 15 June 2005 in Joined Cases T-71/03, T-74/03, T-87/03 and T-91/03 Tokai Carbon Co. Ltd v Commission of the European Communities (Competition — Cartels — Specialty graphite market — Price fixing — Liability — Calculation of fines — Cumulation of penalties — Duty to state reasons — Rights of the defence — Guidelines on the method of setting fines — Applicability — Gravity and duration of the infringement — Attenuating circumstances — Aggravating circumstances — Ability to pay — Cooperation during the administrative procedure — Methods of payment)	18

2005/C 205/2	Judgment of the Court of First Instance of 22 June 2005 in Case T-102/03 Centro informativo per la collaborazione tra le imprese e la promozione degli investimenti in Sicilia SpA (CIS) v Commission of the European Communities (European Regional Development Fund — Withdrawal of financial assistance — Failure to take into consideration expenditure committed by the beneficiary of the assistance — Article 24 of Regulation (EEC) No 4253/88 — Obligation to give reasons — Raised by the Court of its own motion)	19

2005/C 205/3	Judgment of the Court of First Instance of 15 June 2005 in Case T-349/03 Corsica Ferries France SAS v Commission of the European Communities (State aid — Action for annulment — Restructuring aid — Decision declaring the aid compatible with the common market — Commission guidelines — Duty to give statement of reasons — Compliance with the conditions — Minimal character of the aid)	19

2005/C 205/4	Judgment of the Court of First Instance of 16 June 2005 in Case T-352/03, Giorgio Lebedef v Commission of the European Communities (Community officials — Staff report — Delay in drawing up report — Action for damages)	20

2005/C 205/5	Judgment of the Court of First Instance of 15 June 2005 in Case T-7/04 Shaker di L. Laudato & C. Sas v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Application for figurative Community trade mark Limoncello della Costiera Amalfitana shaker — Earlier national word mark LIMONCHELO — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)	20

2005/C 205/6	Judgment of the Court of First Instance of 22 June 2005 in Case T-19/04, Metso Paper Automation Oy v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Word mark PAPERLAB — Absolute ground for refusal of registration — Article 7(1)(c) of Regulation (EC) No 40/94 — Descriptive sign)	20

2005/C 205/7	Judgment of the Court of First Instance of 22 June 2005 in Case T-34/04 Plus Warenhandelsgesellschaft mbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Application for a Community figurative mark containing the verbal element Turkish Power — Earlier word mark POWER — Opposition proceedings — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)	21

2005/C 205/8	Judgment of the Court of First Instance of 15 June 2005 in Case T-186/04 Spa Monopole, compagnie fermière de Spa SA/NV v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition proceedings — Application for registration of Community work mark SPAFORM — Earlier word marks SPA and SPA THERMES — Partial rejection of the opposition — Rule 18(1) of Regulation (EC) No 2868/95)	21

2005/C 205/9	Order of the Court of First Instance of 2 June 2005 in Case T-326/03 Hippocrate Vounakis v Commission of the European Communities (Officials — Promotion — Article 90(2) of the Staff Regulations — Prior administrative complaint — Time-limits — Public policy nature — Inadmissibility)	22

2005/C 205/0	Order of the Court of First Instance of 25 May 2005 in Case T-330/04 Jörg-Michael Fetzer v European Parliament (Preliminary issues — Objection of inadmissibility — Expiry of the period for bringing an action — Manifest inadmissibility)	22

2005/C 205/1	Order of the Court of First Instance of 26 May 2005 in Case T-377/04 Bart Nijs v Court of Auditors of the European Communities (Officials — 2003 Promotion exercise — Decision not to promote — Action for annulment — Prior administrative complaint — Identity of subject-matter and legal basis — Time-limit for lodging a complaint — Manifest inadmissibility)	22

2005/C 205/2	Order of the Court of First Instance of 27 May 2005 in Case T-485/04 Agence de coopération des bibliothèques et centres de documentation en Bretagne (COBB) v Commission of the European Communities (Inadmissibility — Documents not published or notified — Obligation on interested party to request copy within reasonable time-limit — Action brought out of time)	23

2005/C 205/3	Order of the President of the Court of First Instance of 2 June 2005 in Case T-125/05 R: Umwelt- und Ingenieurtechnik GmbH Dresden v Commission of the European Communities (Tendering procedure — Interim proceedings — Urgency — Absence)	23

2005/C 205/4	Case T-214/05: Action brought on 27 May 2005 by Hippocrate Vounakis against the Commission of the European Communities	23

2005/C 205/5	Case T-215/05: Action brought on 27 May 2005 by Marie-Yolande Beau against the Commission of the European Communities	24

2005/C 205/6	Case T-217/05: Action brought on 3 June 2005 by Marker Völkl International GmbH against Office for Harmonisation in the Internal Market (Trade Marks and Designs)	25

2005/C 205/7	Case T-219/05: Action brought on 6 June 2005 by Marta Andreasen against the Commission of the European Communities	25

2005/C 205/8	Case T-220/05: Action brought on 7 June 2005 by Kurt Jacobs against the Commission of the European Communities	26

2005/C 205/9	Case T-224/05: Action brought on 10 June 2005 by Olivier Chassagne against the Commission of the European Communities	27

2005/C 205/0	Case T-225/05: Action brought on 17 June 2005 by Guido Strack against the Commission of the European Communities	28

2005/C 205/1	Case T-226/05: Action brought on 14 June 2005 by Dimitra Lantzoni against the Court of Justice of the European Communities	28

2005/C 205/2	Case T-227/05: Action brought on 13 June 2005 by Vesselina Ranguelova against the Commission of the European Communities	29

2005/C 205/3	Case T-229/05: Action brought on 15 June 2005 by AEPI A.E. against the Commission of the European Communities	29

2005/C 205/4	Case T-230/05: Action brought on 24 June 2005 by Golf USA Inc. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)	30

2005/C 205/5	Case T-231/05: Action brought on 15 June 2005 by Corsica Ferries France against Commission of the European Communities	30

2005/C 205/6	Case T-234/05: Action brought on 13 June 2005 by Gerrit Bethuyne and four others against the Commission of the European Communities	31

2005/C 205/7	Case T-235/05: Action brought on 20 June 2005 by Jan Siffert against the Court of Justice of the European Communities	31

2005/C 205/8	Case T-236/05: Action brought on 17 June 2005 by Willem Aldershoff against the Commission of the European Communities	32

2005/C 205/9	Case T-237/05: Action brought on 17 June 2005 by Editions Odile Jacob SAS against the Commission of the European Communities	32

2005/C 205/0	Case T-239/05: Action brought on 1 July 2005 by The Black & Decker Corporation against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)	33

2005/C 205/1	Case T-240/05: Action brought on 1 July 2005 by The Black & Decker Corporation against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)	34

2005/C 205/2	Case T-241/05: Action brought on 29 June 2005 by The Procter & Gamble Company against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)	35

2005/C 205/3	Case T-242/05: Action brought on 27 June 2005 by AEPI A.E. against the Commission of the European Communities	35

2005/C 205/4	Case T-243/05: Action brought on 30 June 2005 by the Hellenic Republic against the Commission of the European Communities	36

2005/C 205/5	Case T-244/05: Action brought on 1 July 2005 by Gibtelecom Limited against the Commission of the European Communities	37

	III Notices
2005/C 205/6	Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 193, 6.8.2005	38