11.2.2006

Official Journal of the European Union

C 36/1

JUDGMENT OF THE COURT

(Grand Chamber)

of 22 November 2005

in Case C-384/02: Reference for a preliminary ruling from the Københavns Byret in the criminal proceedings against Knud Grøngaard, Allan Bang (1)

(Directive 89/592/EEC - Insider dealing - Disclosure of inside information to third parties - Prohibition)

(2006/C 36/01)

Language of the case: Danish

In Case C-384/02: Reference for a preliminary ruling under Article 234 EC from the Københavns Byret (Denmark), made by Decision of 14 August 2002, received at the Court on 25 October 2002, in the criminal proceedings against Knud Grongaard, Allan Bang — the Court (Grand Chamber) composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, Presidents of Chambers, J.-P. Puissochet, R. Schintgen, S. von Bahr, (Rapporteur), J.N. Cunha Rodrigues and R. Silva de Lapuerta, Judges; M. Poiares Maduro, Advocate General; H. von Holstein, Assistant Registrar, gave a judgment on 22 November 2005, the operative part of which is as follows:

Article 3(a) of Council Directive 89/592/EEC of 13 November 1989 coordinating regulations on insider dealing precludes a person, who receives inside information in his capacity as an employees' representative on a company's board of directors or in his capacity as a member of the liaison committee of a group of undertakings, from disclosing such information to the general secretary of the professional organisation which organises those employees and which appointed that person as a member of the liaison committee, unless:

—	there is a close link between the disclosure and the exercise of his employment, profession or duties, and

—	that disclosure is strictly necessary for the exercise of that employment, profession or duties.

As part of its examination, the national court must, in the light of the applicable national rules, take particular account of:

—	the fact that that exception to the prohibition of disclosure of inside information must be interpreted strictly;

—	the fact that each additional disclosure is liable to increase the risk of that information being exploited for a purpose contrary to Directive 89/592, and

—	the sensitivity of the inside information.

Article 3(a) of Directive 89/592 precludes disclosure of inside information by the general secretary of a professional organisation to colleagues, such as those referred to in the third and fourth questions, except under the conditions set out in the reply to the first and second questions.

As part of its examination, the national court must, in the light of the applicable national rules, take particular account of the criteria also set out in that reply.

(1) OJ C 7 of 11.01.2003.

11.2.2006

Official Journal of the European Union

C 36/2

JUDGMENT OF THE COURT

(Second Chamber)

of 1 December 2005

in Case C-46/03: United Kingdom of Great Britain and Northern Ireland v Commission of the European Communities (1)

(Structural funds - Decommitment of amounts - Conditions - Manchester/Salford/Trafford 2 (‘MST 2’) Programme)

(2006/C 36/02)

Language of the case: English

In Case C-46/03: Action for annulment under Article 230 EC, brought on 31 January 2003, by the United Kingdom of Great Britain and Northern Ireland (Agents: P. Ormond, R. Caudwell and K. Manji, assisted by D. Lloyd-Jones QC and S. Lee, barrister) v Commission of the European Communities (Agent: L. Flynn), supported by: Council of the European Union, (Agents M. Balta and F. Florindo Gijón and J. Carbery) — the Court (Second Chamber), composed of C.W.A. Timmermans (Rapporteur), President of the Chamber, J. Makarczyk, R. Silva de Lapuerta, P. Kūris and G. Arestis, Judges; C. Stix-Hackl, Advocate General; M. Ferreira, Principal Administrator, gave a judgment on 1st December 2005, in which it:

1.	Annuls the decision of the Commission of the European Communities, contained in the letter of 22 November 2002, decommitting the sum of EUR 11 632 600 in respect of expenditure incurred under the Manchester/Salford/Trafford 2 operational programme;

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

3.	Orders the Council of the European Union to bear its own costs.

(1) OJ C 70 of 22.3.2003.

11.2.2006

Official Journal of the European Union

C 36/2

JUDGMENT OF THE COURT

(Grand Chamber)

of 13 December 2005

in Case C-78/03 P: Commission of the European Communities v Aktionsgemeinschaft Recht und Eigentum eV (1)

(Appeal - Aid granted by the German authorities for the acquisition of land - Scheme for privatisation of land and restructuring of agriculture in the new Länder)

(2006/C 36/03)

Language of the case: German

In Case C-78/03 P: Commission of the European Communities (Agents: J. Flett and V. Kreuschitz), the other parties to the proceedings being the Federal Republic of Germany (Agent: M. Lumma), intervener at first instance and Aktionsgemeinschaft Recht und Eigentum eV, established in Borken (Germany), (represented by: M. Pechstein) — appeal under Article 56 of the Statute of the Court of Justice, brought on 19 February 2003 — the Court (Grand Chamber), composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, K. Schiemann and J. Makarczyk, Presidents Chambers, C. Gulmann (Rapporteur), A. La Pergola, J.-P. Puissochet, P. Kūris, E. Juhász, E. Levits and A. Ó Caoimh, Judges; F. G. Jacobs, Advocate General; R. Grass, Registrar, gave a judgment on 13 December 2005, in which it:

1.	Sets aside the judgment of the Court of First Instance of 5 December 2002 in Case T-114/00 Aktionsgemeinschaft Recht und Eigentum v Commission;

Dismisses as inadmissible the action brought by Aktionsgemeinschaft Recht und Eigentum eV before the Court of First Instance of the European Communities for annulment of the Commission decision of 22 December 1999 authorising State aid under Articles 87 and 88 (ex Articles 92 and 93) of the EC Treaty;

3.	Orders Aktionsgemeinschaft Recht und Eigentum eV to pay the costs of the proceedings at both instances.

(1) OJ C 101 of 26.04.2003

11.2.2006

Official Journal of the European Union

C 36/3

JUDGMENT OF THE COURT

(First Chamber)

of 24 November 2005

in Joined Cases C-138/03, C-324/03 and C-431/03: Italian Republic v Commission of the European Communities (1)

(Action for annulment - Structural funds - Co-financing - Regulations (EC) No 1260/1999 and No 1685/2000 - Conditions concerning the eligibility of payments on account made by national bodies within the framework of State aid schemes)

(2006/C 36/04)

Language of the case: Italian

In Joined Cases C-138/03, C-324/03 and C-431/03: actions for annulment under Article 230 EC, brought on 27 March 2003 (C-138/03), 24 July 2003 (C-324/03) and 9 October 2003 (C-431/03), Italian Republic (Agent: I.M. Braguglia, assisted by A. Cingolo, avvocato dello Stato) v Commission of the European Communities (Agents: E. de March and L. Flynn, assisted by A. Dal Ferro, avvocato), the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Schiemann, N. Colneric, J.N. Cunha Rodrigues (Rapporteur) and E. Levits, Judges; J. Kokott, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, gave a judgment on 24 November 2005, in which it:

1.	Declares it unnecessary to give judgment on the action in Case C-138/03;

2.	Dismisses the action in Case C-324/03;

3.	Dismisses the action in Case C-431/03 as inadmissible;

4.	Orders the Commission of the European Communities to pay the costs relating to Case C-138/03;

5.	Orders the Italian Republic to pay the costs relating to Cases C-324/03 and C-431/03.

(1) OJ C 135 of 7.6.2003

OJ C 226 of 20.9.2003

OJ C 304 of 13.12.2003.

11.2.2006

Official Journal of the European Union

C 36/3

JUDGMENT OF THE COURT

(First Chamber)

of 8 December 2005

in Case C-220/03: European Central Bank v Federal Republic of Germany (1)

(Protocol on the Privileges and Immunities of the European Communities - Agreement on the seat of the European Central Bank - Arbitration clause - Immovable property leased by the ECB - Indirect taxes passed on in leasing or letting charges)

(2006/C 36/05)

Language of the case: German

In Case C-220/03: Action under Article 238 EC, brought on 21 May 2003, European Central Bank (Agents: C. Zilioli and M. Benisch, assisted by H.-G. Kamann and M. Selmayr, Rechtsanwälte) v Federal Republic of Germany (Agent: U. Forsthoff, assisted by W. Hölters, Rechtsanwalt) — the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Schiemann (Rapporteur), K. Lenaerts, E. Juhász and M. Ilešič, Judges; C. Stix Hackl, Advocate General; K. Sztranc, Administrator, for the Registrar, gave a judgment on 8 December 2005, in which it:

1.	Dismisses the action;

2.	Orders the European Central Bank to pay the costs.

(1) OJ C 200, 23.8.2003.

11.2.2006

Official Journal of the European Union

C 36/4

JUDGMENT OF THE COURT

(Second Chamber)

of 1 December 2005

in Case C-301/03: Italian Republic v Commission of the European Communities (1)

(Structural funds - Eligibility of expenditure - Amendments to programme complements - Inadmissibility)

(2006/C 36/06)

Language of the case: Italian

In Case C-301/03: Italian Republic (Agent: I.M. Braguglia, assisted by G. Aiello and A. Cingolo, avvocati dello Stato) v Commission of the European Communities (Agents: E. de March and L. Flynn, assisted by A. Dal Ferro, avvocato), ACTION for annulment under Article 230 EC, brought on 2 July 2003 — the Court (Second Chamber), composed of C.W.A. Timmermans (Rapporteur), President of the Chamber, C. Gulmann, R. Schintgen, G. Arestis and J. Klučka, Judges; F.G. Jacobs, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, has given a judgment on 1 December 2005, in which it:

1.	Dismisses the action as inadmissible;

2.	Orders the Italian Republic to pay the costs.

(1) OJ C 226 of 20.9.2003.

11.2.2006

Official Journal of the European Union

C 36/4

JUDGMENT OF THE COURT

(Grand Chamber)

of 15 November 2005

in Case C-320/03: Commission of the European Communities v Republic of Austria (1)

(Failure by a Member State to fulfil its obligations - Articles 28 EC to 30 EC - Free movement of goods - Articles 1 and 3 of Regulation (EEC) No 881/92 - Articles 1 and 6 of Regulation (EEC) No 3118/93 - Transport - Sectoral prohibition on the movement of lorries of more than 7.5 tonnes carrying certain goods - Air quality - Protection of health and the environment - Proportionality principle)

(2006/C 36/07)

Language of the case: German

In Case C-320/03, Commission of the European Communities (Agents: C. Schmidt, W. Wils and G. Braun), supported by Federal Republic of Germany (Agents: W.-D. Plessing and A. Tiemann, assisted by T. Lübbig, lawyer), Italian Republic (Agent: I.M. Braguglia, assisted by G. De Bellis, Avvocato dello Stato), Kingdom of the Netherlands, (Agent: H.G. Sevenster) v Republic of Austria (Agents: E. Riedl and H. Dossi) — Action under Article 226 EC for failure to fulfil obligations, brought on 24 July 2003 — the Court (Grand Chamber), composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas and K. Schiemann, Presidents of Chambers, R. Schintgen (Rapporteur), J.N. Cunha Rodrigues, R. Silva de Lapuerta, K. Lenaerts, P. Kūris, E. Juhász, G. Arestis and A. Borg Barthet, Judges; L.A. Geelhoed, Advocate General; K. Sztranc, Administrator, for the Registrar, gave a judgment on 15 November 2005, the operative part of which is as follows:

By prohibiting lorries of over 7.5 tonnes, carrying certain goods, from driving on a section of the A 12 motorway in the Inn valley, following the adoption of the Regulation of the First Minister of the Tyrol limiting transport on the A 12 motorway in the Inn valley (sectoral prohibition on road transport) [Verordnung des Landeshauptmanns von Tirol, mit der auf der A 12 Inntalautobahn verkehrsbeschränkende Maßnahmen erlassen werden (sektorales Fahrverbot)], of 27 May 2003, the Republic of Austria has failed to fulfil its obligations under Articles 28 EC and 29 EC.

2.	The remainder of the application is dismissed.

3.	The Republic of Austria is ordered to pay the costs.

4.	The Federal Republic of Germany, the Italian Republic and the Kingdom of the Netherlands are ordered to bear their own costs.

(1) OJ C 226, 20. 9.2003.

11.2.2006

Official Journal of the European Union

C 36/5

JUDGMENT OF THE COURT

(Grand Chamber)

of 13 December 2005

in Case C-411/03, Reference for a preliminary ruling from the Landgericht Koblenz in proceedings against SEVIC Systems AG (1)

(Freedom of establishment - Articles 43 EC and 48 EC - Cross-border mergers - Refusal of registration in the national commercial register - Compatibility)

(2006/C 36/08)

Language of the case: German

In Case C-411/03: reference for a preliminary ruling under Article 234 EC from the Landgericht Koblenz (Germany), made by decision of 16 September 2003, received at the Court on 2 October 2003, in proceedings against SEVIC Systems AG — the Court (Grand Chamber) composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas and K. Schiemann, Presidents of Chambers; C. Gulmann (Rapporteur), J.N. Cunha Rodrigues, R. Silva de Lapuerta, K. Lenaerts, P. Kūris, E. Juhász, G. Arestis and A. Borg Barthet Judges; A. Tizzano, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, gave a judgment on 13 December 2005, the operative part of which is as follows:

Articles 43 EC and 48 EC preclude registration in the national commercial register of the merger by dissolution without liquidation of one company and transfer of the whole of its assets to another company from being refused in general in a Member State where one of the two companies is established in another Member State, whereas such registration is possible, on compliance with certain conditions, where the two companies participating in the merger are both established in the territory of the first Member State.

(1) OJ C 289, 29.11.2003.

11.2.2006

Official Journal of the European Union

C 36/5

JUDGMENT OF THE COURT

(Grand Chamber)

of 13 December 2005

in Case C-446/03, Reference for a preliminary ruling from the High Court of Justice of England and Wales, Chancery Division Marks & Spencer plc v David Halsey (Her Majesty's Inspector of Taxes) (1)

(Articles 43 EC and 48 EC - Corporation tax - Groups of companies - Tax relief - Profits of parent companies - Deduction of losses incurred by a resident subsidiary - Allowed - Deduction of losses incurred in another Member State by a non-resident subsidiary - Not included)

(2006/C 36/09)

Language of the case: English

In Case C-446/03: reference for a preliminary ruling under Article 234 EC from the High Court of Justice of England and Wales, Chancery Division (United Kingdom), made by decision of 16 July 2003, received at the Court on 22 October 2003, in the proceedings between Marks & Spencer plc and David Halsey (Her Majesty's Inspector of Taxes) — the Court (Grand Chamber), composed of V. Skouris, President of the Chamber, P. Jann, C.W.A. Timmermans and A. Rosas, Presidents of Chambers, C. Gulmann (Rapporteur), A. La Pergola, J. P. Puissochet, R. Schintgen, N. Colneric, J. Klučka, U. Lõhmus, E. Levits and A. Ó Caoimh, Judges; M. Poiares Maduro, Advocate General; K. Sztranc, Administrator, for the Registrar, gave a judgment on 13 December 2005, the operative part of which is as follows:

As Community law now stands, Articles 43 EC and 48 EC do not preclude provisions of a Member State which generally prevent a resident parent company from deducting from its taxable profits losses incurred in another Member State by a subsidiary established in that Member State although they allow it to deduct losses incurred by a resident subsidiary. However, it is contrary to Articles 43 EC and 48 EC to prevent the resident parent company from doing so where the non-resident subsidiary has exhausted the possibilities available in its State of residence of having the losses taken into account for the accounting period concerned by the claim for relief and also for previous accounting periods and where there are no possibilities for those losses to be taken into account in its State of residence for future periods either by the subsidiary itself or by a third party, in particular where the subsidiary has been sold to that third party.

(1) OJ C 304, 13.12.2003.

11.2.2006

Official Journal of the European Union

C 36/6

JUDGMENT OF THE COURT

(Grand Chamber)

of 6 December 2005

in Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04; reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen's Bench Division (Administrative Court): The Queen, on the application of: ABNA Ltd, Denis Brinicombe, BOCM Pauls Ltd, Devenish Nutrition Ltd, Nutrition Services (International) Ltd, Primary Diets Ltd v Secretary of State for Health, Food Standards Agency (C-453/03); references from the Consiglio di Stato: Fratelli Martini & C. SpA, Cargill Srl, v Ministero delle Politiche Agricole e Forestali, Ministero della Salute, Ministero delle Attività Produttive (C-11/04) and Ferrari Mangimi Srl, Associazione nazionale tra i produttori di alimenti zootecnici (Assalzoo) v Ministero delle Politiche Agricole e Forestali, Ministero della Salute, Ministero delle Attività Produttive (C-12/04); reference for a preliminary ruling from the Rechtbank 's-Gravenhage: Nederlandse Vereniging Diervoederindustrie (Nevedi) v Productschap Diervoeder (C-194/04) (1)

(Animal health and public health requirements - Composite feedingstuffs for animals - Indication of the exact percentage of the components of a product - Infringement of the principle of proportionality)

(2006/C 36/10)

Languages of the cases: English, Italian and Dutch

In Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04: References for preliminary rulings under Article 234 EC, brought by the High Court of Justice of England and Wales, Queen's Bench Division (Administrative Court) (United Kingdom) (C-453/03), by the Consiglio di Stato (Italy) (C-11/04 and C-12/04) and by the Rechtbank 's-Gravenhage (Netherlands) (C-194/04), by decisions of 23 October 2003, 11 November 2003 and 22 April 2004, received by the Court on 27 October 2003, 15 January 2004 and 26 April 2004 respectively, in the proceedings The Queen, on the application of: ABNA Ltd, Denis Brinicombe, BOCM Pauls Ltd, Devenish Nutrition Ltd, Nutrition Services (International) Ltd, Primary Diets Ltd v Secretary of State for Health, Food Standards Agency, (C-453/03); Fratelli Martini & C. SpA, Cargill Srl, v Ministero delle Politiche Agricole e Forestali, Ministero della Salute, Ministero delle Attività Produttive (C-11/04); Ferrari Mangimi Srl, Associazione nazionale tra i produttori di alimenti zootecnici (Assalzoo) v Ministero delle Politiche Agricole e Forestali, Ministero della Salute, Ministero delle Attività Produttive (C-12/04); and Nederlandse Vereniging Diervoederindustrie (Nevedi), v Productschap Diervoeder (C-194/04) — the Court (Grand Chamber) composed of V. Skouris, President, P. Jann, C.W.A. Timmermans and A. Rosas (Rapporteur), Presidents of Chambers, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues, R. Silva de Lapuerta, P. Kūris, E. Juhász, G. Arestis, A. Borg Barthet and M. Ilešič, Judges; A. Tizzano, Advocate General; M.-F. Contet, Principal Administrator, and K. Sztranc, Administrator, for the Registrar, gave a judgment on 6 December 2005, the operative part of which is as follows:

Examination of heading (a) of the question referred in Case C-453/03, of Question 1 in Cases C-11/04 and C-12/04, and of Question 1(a) in Case C-194/04 has not revealed any factor capable of supporting the conclusion that Article 1(1)(b) and 1(4) of Directive 2002/2/EC of the European Parliament and of the Council of 28 January 2002 amending Council Directive 79/373/EEC on the circulation of compound feedingstuffs and repealing Commission Directive 91/357/EEC was not validly adopted on the basis of Article 152(4)(b) EC.

2.	Examination of Question 4 in Case C-12/04 has not revealed any factor capable of affecting the validity of Article 1(1)(b) and 1(4) of Directive 2002/2 in the light of the principle of equal treatment and non-discrimination.

Article 1(1)(b) of Directive 2002/2, which requires manufacturers of compound animal feedingstuffs to indicate, at a customer's request, the exact composition of a feedingstuff, is invalid in the light of the principle of proportionality. By contrast, examination of heading (c) of the question referred in Case C-453/03, of Question 2 in Cases C-11/04 and C-12/04, and Question 1(c) in Case C-194/04 has not revealed any factor capable of affecting the validity of Article 1(4) of Directive 2002/2 in the light of that principle.

4.	Directive 2002/2 must be interpreted as meaning that its application is not contingent on the adoption of the positive list of feed materials designated by their specific names referred to in recital (10) in the preamble to that directive.

Even in the case in which a court of a Member State forms the view that the conditions have been satisfied under which it may suspend application of a Community measure, in particular where the question of the validity of that measure has already been referred to the Court, the competent national administrative authorities of the other Member States cannot suspend application of that measure until such time as the Court has ruled on its validity. National courts alone are entitled to determine, taking into consideration the specific circumstances of the cases brought before them, whether the conditions governing the grant of interim relief have been satisfied.

(1) OJ C 7, 10.01.2004.

OJ C 59, 06.03.2004.

OJ C 179, 10.07.2004.

11.2.2006

Official Journal of the European Union

C 36/7

JUDGMENT OF THE COURT

(Grand Chamber)

of 6 December 2005

in Case C-461/03: reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven Gaston Schul Douane-expediteur BV v Minister van Landbouw, Natuur en Voedselkwaliteit (1)

(Article 234 EC - Obligation on a national court to seek a preliminary ruling - Invalidity of a provision of Community law - Sugar - Additional import duty - Regulation (EC) No 1423/95 - Article 4)

(2006/C 36/11)

Language of the case: Dutch

In Case C-461/03: reference for a preliminary ruling under Article 234 EC from the College van Beroep voor het bedrijfsleven (Netherlands), made by decision of 24 October 2003, received at the Court on 4 November 2003, in the proceedings between Gaston Schul Douane-expediteur BV and Minister van Landbouw, Natuur en Voedselkwaliteit — the Court (Grand Chamber), composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas and J. Malenovský, Presidents of Chambers, N. Colneric (Rapporteur), S. von Bahr, J.N. Cunha Rodrigues, R. Silva de Lapuerta, K. Lenaerts, G. Arestis, A. Borg Barthet and M. Ilešič, Judges; D. Ruiz-Jarabo Colomer, Advocate General, R. Grass, Registrar, gave a judgment on 6 December 2005, the operative part of which is as follows:

The third paragraph of Article 234 EC requires a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law to seek a ruling from the Court of Justice on a question relating to the validity of the provisions of a regulation even where the Court has already declared invalid analogous provisions of another comparable regulation;

Paragraphs (1) and (2) of Article 4 of Commission Regulation (EC) No 1423/95 of 23 June 1995 laying down detailed implementing rules for the import of products in the sugar sector other than molasses are invalid inasmuch as they provide that the additional duty referred to therein is, as a general rule, established on the basis of the representative price referred to in Article 1(2) of that regulation and that that duty is established on the basis of the cif import price of the shipment concerned only if the importer so requests.

(1) OJ C 7, 10.01.2004.

11.2.2006

Official Journal of the European Union

C 36/7

JUDGMENT OF THE COURT

(Fourth Chamber)

of 24 November 2005

in Case C-506/03: Federal Republic of Germany v Commission of the European Communities (1)

(Subsidies - Feasibility study - Contract for the assignment of intellectual property rights)

(2006/C 36/12)

Language of the case: German

In Case C-506/03 Federal Republic of Germany (Agent: M. Lumma, assisted by C. von Donat, Rechtsanwalt) v Commission of the European Communities (Agents: G. Zavvos and C. Schmidt, assisted by B. Wägenbaur, Rechtsanwalt) — action for annulment under Article 230 EC, brought on 26 November 2003 — the Court (Fourth Chamber), composed of K. Lenaerts, Acting President of the Fourth Chamber, M. Ilešič and E. Levits (Rapporteur), Judges; D. Ruiz-Jarabo Colomer, Advocate General; K. Sztranc, Administrator for the Registrar, gave a judgment on 24 November 2005, in which it:

1.	Dismisses the action;

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

(1) OJ C 47 of 21.02.2004

11.2.2006

Official Journal of the European Union

C 36/8

JUDGMENT OF THE COURT

(Second Chamber)

of 1 December 2005

in Case C-14/04, Reference for a preliminary ruling from the Conseil d'État, Abdelkader Dellas and Others v Premier ministre and Others (1)

(Social policy - Protection of the safety and health of workers - Directive 93/104/CE - Concept of ‘working time’ - Scope - National legislation providing for a ceiling more favourable to workers, in particular as regards maximum weekly working time - Determination of working time in certain social establishments - On-call duty where the worker is required to be present at the workplace - Periods of inactivity on the part of the worker in the context of such duty - National system of calculation of hours of presence differentiated according to the intensity of the activity)

(2006/C 36/13)

Language of the case: French

In Case C-14/04: reference for a preliminary ruling under Article 234 EC from the Conseil d'État (France), made by decision of 3 December 2003, received at the Court on 15 January 2004, in the proceedings between Abdelkader Dellas, Confédération générale du travail, Fédération nationale des syndicats des services de santé et des services sociaux CFDT, Fédération nationale de l'action sociale Force ouvrière and Premier ministre, Ministre des Affaires sociales, du Travail et de la Solidarité, in the presence of: Union des fédérations et syndicats nationaux d'employeurs sans but lucratif du secteur sanitaire, social et médico-social — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, R. Schintgen (Rapporteur), R. Silva de Lapuerta, P. Kūris and G. Arestis, Judges; D. Ruiz-Jarabo Colomer, Advocate General; L. Hewlett, Principal Administrator, for the, Registrar, gave a judgment on 1 December 2005, in which it rules:

Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time must be interpreted as precluding legislation of a Member State which, with respect to on-call duty performed by workers in certain social and medico-social establishments during which they are required to be physically present at their workplace, lays down, for the purpose of calculating the actual working time, a system of equivalence such as that at issue in the main proceedings, where compliance with all the minimum requirements laid down by that directive in order to protect effectively the safety and health of workers is not ensured.

Where national law fixes a ceiling more favourable to workers, in particular for maximum weekly working time, the relevant thresholds or ceilings for ascertaining whether the protective rules laid down by that directive are complied with are exclusively those set out in the directive.

(1) OJ C 59, 06.03.2004.

11.2.2006

Official Journal of the European Union

C 36/8

JUDGMENT OF THE COURT

(Second Chamber)

of 8 December 2005

in Case C-33/04: Commission of the European Communities v Grand Duchy of Luxembourg (1)

(Failure of a Member State to fulfil obligations - Telecommunications - Directive 97/33/EC - Article 7(5) - Obligation to verify the compliance of cost accounting systems by a competent independent body and to publish a statement of compliance - Directive 98/10/EC - Article 18(1) and (2) - Failure to apply correctly the measures adopted as regards verification of the compliance of the cost accounting system by the national regulatory authority and the annual publication of a statement of compliance - Admissibility - Interest in bringing proceedings - Pre-litigation procedure - Rights of the defence - Directives 2002/19/EC, 2002/21/EC and 2002/22/EC - Transitional provisions - Member States to refrain, during the period laid down for transposition of a directive, from taking any measures liable seriously to compromise the result prescribed by that directive - Reference interconnection offers)

(2006/C 36/14)

Language of the case: French

In Case C-33/04, Commission of the European Communities (Agent: W. Wils and M. Shotter) v Grand Duchy of Luxembourg (Agents: M. Thill and S. Schreiner, assisted by A. Verheyden and F. Bimont, avocats,) — action under Article 226 EC for failure to fulfil obligations, brought on 29 January 2004 — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta, P. Kūris, G. Arestis (Rapporteur) and J. Klučka,, Judges; F.G. Jacobs, Advocate General; H. von Holstein, Deputy Registrar, for the Registrar, gave a judgment on 8 December 2005, in which it:

Declares that, by failing to comply with the obligations to verify the compliance of cost accounting systems by a competent independent body and to publish a statement of compliance for the years 1998 and 1999, in accordance with Article 7(5) of Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP) and by failing to apply correctly in practice the measures relating to the verification of the compliance of the cost accounting system by the national regulatory authority or another competent body, independent of the telecommunications organisation and approved by that regulatory authority, for the year 2000, in accordance with the provisions of Article 18(1) and (2) of Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment, as maintained by Article 27 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (‘the Framework Directive’), read in conjunction with Article 16 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (‘the Universal Service Directive’), the Grand Duchy of Luxembourg has failed to fulfil its obligations under those provisions;

2.	Orders the Commission of the European Communities and the Grand Duchy of Luxembourg to bear their own costs.

(1) OJ C 71 of 23.03.2004.

11.2.2006

Official Journal of the European Union

C 36/9

JUDGMENT OF THE COURT

(Third Chamber)

of 15 December 2005

in Case C-63/04: Reference for a preliminary ruling from the High Court of Justice of England and Wales, Chancery Division Centralan Property Ltd v Commissioners of Customs & Excise (1)

(Sixth VAT Directive - Article 20(3) - Capital goods - Deduction of input tax - Adjustments of deductions - Immovable property - Disposal by means of two connected transactions, one exempt, the other taxable - Apportionment)

(2006/C 36/15)

Language of the case: English

In Case C-63/04: Reference for a preliminary ruling under Article 234 EC from the High Court of Justice of England and Wales, Chancery Division (United Kingdom), made by decision of 21 February 2003, received at the Court on 13 February 2004, in the proceedings pending before that court between Centralan Property Ltd and Commissioners of Customs & Excise — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, A. La Pergola, J.-P. Puissochet, U. Lõhmus and A. Ó Caoimh (Rapporteur), Judges; J. Kokott, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, gave a judgment on 15 December 2005, the operative part of which is as follows:

Article 20(3) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 95/7/EC of 10 April 1995, is to be interpreted as meaning that, where a 999-year lease over capital goods is granted to a person against the payment of a substantial premium and the freehold reversion in that property is transferred three days later to another person at a much lower price, and where those two transactions

—	are inextricably linked, and

—	consist of a first transaction which is exempt and a second transaction which is taxable,

—	and if those transactions, owing to the transfer of the right to dispose of those capital goods as owner, constitute supplies within the meaning of Article 5(1) of that directive,

the goods in question are regarded, until the expiry of the period of adjustment, as having been used in business activities which are presumed to be partly taxable and partly exempt in proportion to the respective values of the two transactions.

(1) OJ C 85, 3.04.2004.

11.2.2006

Official Journal of the European Union

C 36/9

JUDGMENT OF THE COURT

(Grand Chamber)

of 6 December 2005

in Case C-66/04: United Kingdom of Great Britain and Northern Ireland v European Parliament, Council of the European Union (1)

(Foods - Regulation (EC) No 2065/2003 - Smoke flavourings - Choice of legal basis)

(2006/C 36/16)

Language of the case: English

In Case C-66/04: Action for annulment under Article 230 EC, brought on 11 February 2004, United Kingdom of Great Britain and Northern Ireland (Agents: R. Caudwell and M. Bethell, assisted by Lord Goldsmith QC, N. Paines QC and T. Ward, Barrister) v European Parliament (Agents: K. Bradley and M. Moore), Council of the European Union (Agents: M. Sims, E. Karlsson and F. Ruggeri Laderchi), supported by: Commission of the European Communities (Agents: J.-P. Keppenne, N. Yerrell and M. Shotter) — the Court (Grand Chamber), composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas and K. Schiemann, Presidents of Chambers, S. von Bahr, J.N. Cunha Rodrigues, R. Silva de Lapuerta (Rapporteur), K. Lenaerts, P. Kūris, E. Juhász, A. Borg Barthet and M. Ilešič, Judges; J. Kokott, Advocate General; K. Sztranc, Administrator, for the Registrar, gave a judgment on 6 December 2005, in which it:

1.	Dismisses the action;

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

3.	Orders the Commission of the European Communities to bear its own costs.

(1) OJ C 94 of 17. 04. 2004.

11.2.2006

Official Journal of the European Union

C 36/10

JUDGMENT OF THE COURT

(Fifth Chamber)

of 24 November 2005

in Case C-136/04: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) Deutsches Milch-Kontor GmbH v Hauptzollamt Hamburg-Jonas (1)

(Export refunds - Regulations (EEC) Nos 804/68, 1706/89 and 3445/89 - Cheeses intended for processing in a third country)

(2006/C 36/17)

Language of the case: German

In Case C-136/04: REFERENCE for a preliminary ruling under Article 234 EC from the Bundesfinanzhof (Germany), made by decision of 3 February 2004, received at the Court on 15 March 2004, in the proceedings pending before that court between Deutsches Milch-Kontor GmbH and Hauptzollamt Hamburg-Jonas — the Court (Fifth Chamber) composed of J. Makarczyk, President of the Chamber, R. Schintgen and R. Silva de Lapuerta (Rapporteur), Judges; M. Poiares Maduro, Advocate General, B. Fülöp, Administrator, for the Registrar, gave a judgment on 24 November 2005, the operative part of which is as follows:

Cheese exported in 1990 which, by its nature, is intended for processing in a third country may be covered by an export refund under Article 17(1) of Regulation (EEC) No 804/68 of the Council of 27 June 1968 on the common organisation of the market in milk and milk products, as amended by Council Regulation (EEC) No 3904/87 of 22 December 1987, provided that it is classified, taking account of its type and composition, under one of the product codes in the annex to Commission Regulation (EEC) No 1706/89 of 15 June 1989 fixing the export refunds on milk and milk products, as defined by the agricultural product nomenclature for export refunds annexed to Commission Regulation (EEC) No 3445/89 of 15 November 1989 establishing the full version, applicable from 1 January 1990, of the agricultural product nomenclature for export refunds.

(1) OJ C 118 of 30. 04. 2004.

11.2.2006

Official Journal of the European Union

C 36/10

JUDGMENT OF THE COURT

(Grand Chamber)

of 22 November 2005

in Case C-144/04 Reference for a preliminary ruling from the Arbeitsgericht München Werner Mangold v Rüdiger Helm (1)

(Directive 1999/70/EC - Clauses 2, 5 and 8 of the Framework Agreement on fixed-term work - Directive 2000/78/EC - Article 6 - Equal treatment as regards employment and occupation - Age discrimination)

(2006/C 36/18)

Language of the case: German

In Case C-144/04: Reference for a preliminary ruling under Article 234 EC from the Arbeitsgericht München (Germany), made by decision of 26 February 2004, received at the Court on 17 March 2004, in the proceedings pending before that court between Werner Mangold and Rüdiger Helm — the Court: (Grand Chamber) composed of P. Jann, President of the First Chamber, acting as President, C.W.A. Timmermans, A. Rosas and K. Schiemann, Presidents of Chambers, and R. Schintgen (Rapporteur), S. von Bahr, J.N. Cunha Rodrigues, R. Silva de Lapuerta, K. Lenaerts, E. Juhász, G. Arestis, A. Borg Barthet and M. Ilešič, Judges; A. Tizzano, Advocate General, K. Sztranc, Administrator, has given a judgment on 22 November 2005, the operative part of which is as follows:

On a proper construction of Clause 8(3) of the Framework Agreement on fixed-term contracts concluded on 18 March 1999, put into effect by Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, domestic legislation such as that at issue in the main proceedings, which for reasons connected with the need to encourage employment and irrespective of the implementation of that agreement, has lowered the age above which fixed-term contracts of employment may be concluded without restrictions, is not contrary to that provision.

Community law and, more particularly, Article 6(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as precluding a provision of domestic law such as that at issue in the main proceedings which authorises, without restriction, unless there is a close connection with an earlier contract of employment of indefinite duration concluded with the same employer, the conclusion of fixed-term contracts of employment once the worker has reached the age of 52.

It is the responsibility of the national court to guarantee the full effectiveness of the general principle of non-discrimination in respect of age, setting aside any provision of national law which may conflict with Community law, even where the period prescribed for transposition of that directive has not yet expired.

(1) JO C 146 of 29.5.2004.

11.2.2006

Official Journal of the European Union

C 36/11

JUDGMENT OF THE COURT

(Second Chamber)

of 15 December 2005

in Case C-148/04 (Reference for a preliminary ruling from the Commissione tributaria provinciale di Genova) Unicredito Italiano SpA v Agenzia delle Entrate, Ufficio Genova 1 (1)

(State aid - Decision 2002/581/EC - Tax advantages granted to banks - Statement of reasons for a decision - Categorisation as State aid - Conditions - Compatibility with the common market - Conditions - Article 87(3)(b) and (c) EC - Important project of common European interest - Development of certain activities - Tax advantages granted previously - Recovery of the aid - Principle of the protection of legitimate expectations - Principle of legal certainty - Principle of proportionality)

(2006/C 36/19)

Language of the case: Italian

In Case C-148/04: reference for a preliminary ruling under Article 234 EC from the Commissione tributaria provinciale di Genova (Italy), made by decision of 11 February 2004, received at the Court on 23 March 2004, in the proceedings between Unicredito Italiano SpA and Agenzia delle Entrate, Ufficio Genova 1 — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, C. Gulmann (Rapporteur), R. Schintgen, G. Arestis and J. Klučka, Judges; C. Stix-Hackl, Advocate General; M. Ferreira, Principal Administrator, Registrar, gave a judgment on 15 December 2005, the operative part of which is as follows:

1.	Examination of the questions referred has disclosed nothing capable of affecting the validity of Commission Decision 2002/581/EC of 11 December 2001 on the tax measures for banks and banking foundations implemented by Italy;

Article 87 et seq. EC, Article 14 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, and the principles of legal certainty, proportionality and the protection of legitimate expectations cannot preclude a national measure ordering repayment of aid in compliance with a Commission decision which found that aid to be incompatible with the common market and examination of which in the light of those provisions and general principles has not disclosed any factor capable of affecting its validity.

(1) OJ C 118 of 30.04.2004.

11.2.2006

Official Journal of the European Union

C 36/11

JUDGMENT OF THE COURT

(Second Chamber)

of 27 October 2005

in Joined Cases C-187/04 and C-188/04: Commission of the European Communities v Italian Republic (1)

(Failure of a Member State to fulfil obligations - Directive 93/37/EEC - Public works contracts - Public works concessions - Rules on advertising)

(2006/C 36/20)

Language of the case: Italian

In Joined Cases C-187/04 and C-188/04 Commission of the European Communities (Agent: K. Wiedner, Lawyer: G. Bambara) v Italian Republic (Agent: I.M. Braguglia, Lawyer: M. Fiorilli) — two actions under Article 226 EC for failure to fulfil obligations, brought on 22 April 2004 — the Court (Second Chamber), composed of C.W.A Timmermans, President of the Chamber, J. Makarczyk (Rapporteur), R. Silva de Lapuerta, P. Kūris and J. Klučka, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, gave a judgment on 27 October 2005, in which it:

Declares that, since the public invitation ANAS S.p.A. awarded the contract for the construction and management of the Valtrompia and Pedemontana Veneta Ovest motorways to the Società per l'autostrada Brescia-Verona-Vicenza-Padova p.a. by direct concession without prior publication of a contract notice, where the requirements for such a concession were not met, the Italian Republic has failed to fulfil its obligations under Council Directive 93/37/EEC of 14 June 1993 coordinating the procedures for the award of public works contracts and in particular Articles 3(1) and 11(3), (6) and (7) thereof;

2.	Orders the Italian Republic to pay the costs.

(1) OJ C 179 of 10.7.2004

OJ C 168 of 26.6.2004.

11.2.2006

Official Journal of the European Union

C 36/12

JUDGMENT OF THE COURT

(Third Chamber)

of 1 December 2005

in Case C-213/04: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) Ewald Burtscher v Josef Stauderer (1)

(Free movement of capital - Article 56 EC - Declaration procedure in respect of the acquisition of built-on land - Retroactive invalidity of the transaction if declaration by the purchaser is submitted after the due date)

(2006/C 36/21)

Language of the case: German

In Case C-213/04: reference for a preliminary ruling under Article 234 EC from the Oberster Gerichtshof (Austria), made by decision of 29 April 2004, received at the Court on 19 May 2004, in the proceedings between Ewald Burtscher and Josef Stauderer — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J. Malenovský, J. P. Puissochet (Rapporteur), S. von Bahr and U. Lõhmus, Judges; F.G. Jacobs, Advocate General; K. Sztranc, Administrator for the Registrar, gave a judgment on 1 December 2005 in which it ruled:

Article 56(1) EC precludes the application of national legislation such as the Vorarlberg Land Transfer Law (Vorarlberger Grundverkehrsgesetz) of 23 September 1993, in its amended version, under which the mere fact that the requisite declaration of acquisition is submitted after the due date results in the retroactive invalidity of the property transaction concerned.

(1) OJ C 190 of 24.07.2004.

11.2.2006

Official Journal of the European Union

C 36/12

JUDGMENT OF THE COURT

(Fifth Chamber)

of 15 December 2005

in Case C-250/04: Commission of the European Communities v Hellenic Republic (1)

(Failure of a Member State to fulfil obligations - Directive 2002/19/EC - Access to electronic communications networks and associated facilities - Failure to transpose within the prescribed period)

(2006/C 36/22)

Language of the case: Greek

In Case C-250/04 Commission of the European Communities (Agents: G. Zavvos and M. Shotter) v Hellenic Republic (Agent: N. Dafniou) — action for failure to fulfil obligations under Article 226 EC, brought on 14 June 2004 — the Court (Fifth Chamber), composed of J. Makarczyk, President of the Chamber, R. Silva de Lapuerta and P. Kūris (Rapporteur), Judges; A. Tizzano, Advocate General; R. Grass, Registrar, gave a judgment on 15 December 2005, in which it:

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), the Hellenic Republic has failed to fulfil its obligations under that directive.

2.	Orders the Hellenic Republic to pay the costs.

(1) OJ C 201, 07.08.2004.

11.2.2006

Official Journal of the European Union

C 36/13

JUDGMENT OF THE COURT

(Fifth Chamber)

of 15 December 2005

in Case C-253/04: Commission of the European Communities v Hellenic Republic (1)

(Failure of a Member State to fulfil obligations - Directive 2002/21/EC - Electronic communications networks and services - Common regulatory framework - Failure to transpose within the prescribed period)

(2006/C 36/23)

Language of the case: Greek

In Case C-253/04 Commission of the European Communities (Agents: G. Zavvos and M. Shotter) v Hellenic Republic (Agent: N. Dafniou) — action for failure to fulfil obligations under Article 226 EC, brought on 14 June 2004 — the Court (Fifth Chamber), composed of J. Makarczyk, President of the Chamber, R. Silva de Lapuerta and P. Kūris (Rapporteur), Judges; A. Tizzano, Advocate General; R. Grass, Registrar, gave a judgment on 15 December 2005, in which it:

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), the Hellenic Republic has failed to fulfil its obligations under that directive.

2.	Orders the Hellenic Republic to pay the costs.

(1) OJ C 201, 07.08.2004

11.2.2006

Official Journal of the European Union

C 36/13

JUDGMENT OF THE COURT

(Fifth Chamber)

of 15 December 2005

in Case C-254/04: Commission of the European Communities v Hellenic Republic (1)

(Failure of a Member State to fulfil obligations - Directive 2002/20/EC - Electronic communications networks and services - Authorisation - Failure to transpose within the prescribed period)

(2006/C 36/24)

Language of the case: Greek

In Case C-254/04 Commission of the European Communities (Agents: G. Zavvos and M. Shotter) v Hellenic Republic (Agent: N. Dafniou) — action for failure to fulfil obligations under Article 226 EC, brought on 14 June 2004 — the Court (Fifth Chamber), composed of J. Makarczyk, President of the Chamber, R. Silva de Lapuerta and P. Kūris (Rapporteur), Judges; A. Tizzano, Advocate General; R. Grass, Registrar, gave a judgment on 15 December 2005, in which it:

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive), the Hellenic Republic has failed to fulfil its obligations under that directive.

2.	Orders the Hellenic Republic to pay the costs.

(1) OJ C 201, 07.08.2004

11.2.2006

Official Journal of the European Union

C 36/13

JUDGMENT OF THE COURT

(Third Chamber)

of 8 December 2005

in Case C-280/04 Reference for a preliminary ruling from the Vestre Landsret (Denmark) Jyske Finans A/S v Skatteministeriet (1)

(Sixth VAT Directive - Article 13B(c) - Exemptions - Exemption of supplies of goods excluded from the right to deduct - Resale of motor cars purchased second-hand by a leasing company - Article 26a - Special arrangements for sales of second-hand goods)

(2006/C 36/25)

Language of the case: Danish

In Case C-280/04: reference for a preliminary ruling under Article 234 EC from the Vestre Landsret (Denmark), made by decision of 25 June 2004, received at the Court on 29 June 2004, in the proceedings pending before that court between Jyske Finans A/S v Skatteministeriet — the Court: (Third Chamber) composed of A. Rosas, President of the Chamber, J. Malenovský (Rapporteur), J.-P. Puissochet, S. von Bahr and U. Lõhmus, Judges; L.A. Geelhoed, Advocate General, H. von Holstein, Deputy Registrar, gave a judgment on 8 December 2005, the operative part of which is as follows:

The provisions of Articles 13B(c) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 94/5/EC of 14 February 1994 are to be construed as meaning that they do not preclude a national law which imposes value added tax on transactions by which a taxable person, after having used them for the purposes of its business, resells goods on the acquisition of which, by virtue of Article 17(6), value added tax did not become deductible, even where that acquisition, made from taxable persons who could not declare value added tax, did not, for that reason, give rise to a right to deduct.

Article 26aA(e) of Sixth Directive 77/388, as amended by Directive 94/5, is to be construed as meaning that an undertaking which, in the normal course of its business, resells cars which it had purchased second-hand with a view to using them for the purposes of its business of sale and leaseback and for which the resale is not, at the time of the purchase of the second-hand goods, the principal objective but only its secondary objective, ancillary to that of leasing, can be considered to be a ‘taxable dealer’ within the meaning of that provision.

(1) OJ C 228 of 11.9.2004.

11.2.2006

Official Journal of the European Union

C 36/14

JUDGMENT OF THE COURT

(First Chamber)

of 24 November 2005

in Case C-366/04: Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat Salzburg in Georg Schwarz v Bürgermeister der Landeshauptstadt Salzburg (1)

(Free movement of goods - Quantitative restrictions - Measures having equivalent effect - National legislative provision prohibiting the sale of non-packaged confectionery from vending machines - Hygiene of foodstuffs)

(2006/C 36/26)

Language of the case: German

In Case C-366/04: reference for a preliminary ruling under Article 234 EC from the Unabhängiger Verwaltungssenat Salzburg (Independent Administrative Chamber of Salzburg) (Austria), made by decision of 16 August 2004, received at the Court on 23 August 2004, in the proceedings between Georg Schwarz and the Bürgermeister der Landeshauptstadt Salzburg — the Court (First Chamber), composed of P. Jann, President of the Chamber, J.N. Cunha Rodrigues, E. Juhász (Rapporteur), M. Ilešič and E. Levits, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, gave a judgment on 24 November 2005, the operative part of which is as follows:

It is not contrary to Articles 28 EC, 30 EC and Article 7 of Council Directive 93/43/EEC of 14 June 1993 on the hygiene of foodstuffs for a provision of national law, adopted before the entry into force of that directive, to prohibit the offer for sale from vending machines of sugar confectionery or products made using sugar substitutes, without wrapping.

(1) OJ C 262 of 23.10.2004.

11.2.2006

Official Journal of the European Union

C 36/14

JUDGMENT OF THE COURT

(Sixth Chamber)

of 17 November 2005

in Case C-378/04: Commission of the European Communities v Republic of Austria (1)

(Failure of a Member State to fulfil obligations - Risks related to exposure to carcinogens and mutagens - Failure to transpose within the prescribed period)

(2006/C 36/27)

Language of the case: German

In Case C-378/04 Commission of the European Communities (Agents: D. Martin and V. Kreuschitz) v Republic of Austria (Agent: C. Pesendorfer) — action under Article 226 EC for failure to comply with obligations, brought on 2 September 2004 — the Court, composed of A. Borg Barthet (Rapporteur) acting as President of the Sixth Chamber, U. Lõhmus and A. Ó Caoimh, Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, gave a judgment on 17 November 2005, in which it:

Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to fully transpose Council Directive 1999/38/EC of 29 April 1999 amending for the second time Directive 90/394/EEC on the protection of workers from the risks related to exposure to carcinogens at work and extending it to mutagens, the Republic of Austria has failed to fulfil its obligations under that directive;

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

(1) OJ C 262 of 23.10.2004

11.2.2006

Official Journal of the European Union

C 36/15

JUDGMENT OF THE COURT

(Third Chamber)

of 1 December 2005

in Joined Cases C-394/04 and C-395/05, References for a preliminary ruling from the Simvoulio tis Epikratias, Diagnostiko & Therapeftiko Kentro Athinon-Ygeia AE v Ipourgos Ikonomikon (1)

(Sixth VAT Directive - Article 13A(1)(b) - Exemptions - Activities closely related to hospital and medical care - Provision of telephone services and hiring out of televisions to in-patients - Provision of beds and meals to persons accompanying in-patients)

(2006/C 36/28)

Language of the case: Greek

In Joined Cases C-394/04 and C-395/04: references for a preliminary ruling under Article 234 EC from the Simvoulio tis Epikratias (Greece), made by decisions of 16 June 2004, received at the Court on 17 September 2004, in the proceedings between Diagnostiko & Therapeftiko Kentro Athinon-Ygeia AE and Ipourgos Ikonomikon — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J.-P. Puissochet, S. von Bahr, U. Lõhmus and A. Ó Caoimh (Rapporteur), Judges; P. Léger, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, gave a judgment on 1 December 2005, the operative part of which is as follows:

The supply of telephone services and the hiring out of televisions to in-patients by persons covered by Article 13A(1)(b) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, and the supply by those persons of beds and meals to people accompanying in-patients do not amount, as a general rule, to activities closely related to hospital and medical care within the meaning of that provision. It can be otherwise only if those supplies are essential to achieve the therapeutic objectives sought by the hospital and medical care and their basic purpose is not to obtain additional income for the supplier by carrying out transactions which are in direct competition with those of commercial enterprises liable for value added tax.

2.	It is for the referring court, taking account of all of the specific facts in the litigation before it and, if appropriate, of the content of the medical prescriptions drawn up for the patients concerned, to determine whether the services supplied satisfy those conditions.

(1) OJ C 273 of 06.11.2004.

11.2.2006

Official Journal of the European Union

C 36/15

JUDGMENT OF THE COURT

(Fourth Chamber)

of 8 December 2005

in Case C-445/04: Possehl Erzkontor GmbH v Hauptzollamt Duisburg (1)

(Common Customs Tariff - Tariff classification - Subheading 2519 90 10 - Fused magnesia obtained by fusion in an electric arc furnace of magnesite that has previously been caustic-burned - Fused magnesia)

(2006/C 36/29)

Language of the case: German

In Case C-445/04: Reference for a preliminary ruling under Article 234 EC from the Finanzgericht (Finance Court) Düsseldorf (Germany), made by decision of 13 October 2004, received at the Court on 21 October 2004, in the proceedings Possehl Erzkontor GmbH v Hauptzollamt Duisburg — the Court (Fourth Chamber), composed of K. Lenaerts, President of the Chamber, M. Ilešič (Rapporteur) and E. Levits, Judges; A. Tizzano, Advocate General; H. von Holstein, Deputy Registrar, gave a judgment on 8 December 2005, the operative part of which is as follows:

Fused magnesia such as that at issue in the main proceedings comes under subheading 2519 90 10 of the Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulations (EC) Nos 3115/94 of 20 December 1994, 1359/95 of 13 June 1995, 2448/95 of 10 October 1995 and 3009/95 of 22 December 1995.

(1) OJ C 314 of 18. 12. 2004.

11.2.2006

Official Journal of the European Union

C 36/16

JUDGMENT OF THE COURT

(Sixth Chamber)

of 17 November 2005

in Case C-22/05: Commission of the European Communities v Kingdom of Belgium (1)

(Failure of a Member State to fulfil obligations - Directive 93/104/EC - Working conditions - Organisation of working time - Failure to transpose within the prescribed period)

(2006/C 36/30)

Language of the case: French

In Case C-22/05 Commission of the European Communities (Agents: G. Rozet and N. Yerrell) v Kingdom of Belgium (Agent: M. Wimmer) — action under Article 226 EC for failure to comply with obligations, brought on 25 January 2005 — the Court (Sixth Chamber), composed of J.-P. Puissochet acting as President of the Sixth Chamber, S. von Bahr and A. Borg Barthet (Rapporteur), Judges; J. Kokott, Advocate General; R. Grass, Registrar, gave a judgment on 17 November 2005, in which it:

Declares that, by excluding people working in a fairground undertaking from the scope of the national measures transposing Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time, the Kingdom of Belgium has failed to fulfil its obligations under Article 1(3) and Article 17 of that directive;

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

(1) OJ C 82 of 02.04.2005.

11.2.2006

Official Journal of the European Union

C 36/16

JUDGMENT OF THE COURT

(Fifth Chamber)

of 8 December 2005

in Case C-38/05: Commission of the European Communities v Ireland (1)

(Failure of a Member State to fulfil obligations - Regulation (EEC) No 2847/93 - Control system within the fisheries sector - Information on types and quantities of fish landed and on fishing effort)

(2006/C 36/31)

Language of the case: English

In Case C-38/05, Commission of the European Communities (Agent: B. Doherty) v Ireland (Agent: D.J. O'Hagan, assisted by A. Schuster and E. Fannon, Barristers) — action under Article 226 EC for failure to fulfil obligations, brought on 1 February 2005 — the Court (Fifth Chamber), composed of J. Makarczyk, President of the Chamber, R. Schintgen and P. Kūris (Rapporteur), Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, gave a judgment on 8 December 2005, in which it:

Declares that, by failing to communicate the data required under Articles 15(4) and 18(1) and the first and third indents of Article 19i of Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy, as amended by Council Regulation (EC) No 2635/97 of 18 December 1997, Ireland has failed to fulfil its obligations under those provisions;

2.	Orders Ireland to pay the costs.

(1) OJ C 82, 02.04.2005.

11.2.2006

Official Journal of the European Union

C 36/17

JUDGMENT OF THE COURT

(Sixth Chamber)

of 15 December 2005

in Case C-67/05: Commission of the European Communities v Federal Republic of Germany (1)

(Failure of a Member State to fulfil obligations - Directive 2000/60/EC - Community action in the field of water policy - Failure to transpose within the prescribed period)

(2006/C 36/32)

Language of the case: German

In Case C-67/05 Commission of the European Communities (Agents: U. Wölker and S. Pardo Quintillán) v Federal Republic of Germany (Agent: U. Forsthoff) — action under Article 226 EC for failure to fulfil obligations, brought on 11 February 2005 — the Court (Sixth Chamber), composed of J. Malenovský, President of the Chamber, J.-P. Puissochet and A Ó Caoimh (Rapporteur), Judges; P. Léger, Advocate General; R. Grass, Registrar, gave a judgment on 15 December 2005, in which it:

Declares that, by not adopting within the prescribed period, all of the laws, regulations and administrative provisions necessary to comply with Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, the Federal Republic of Germany has failed to fulfil its obligations under that directive;

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

(1) OJ C 82 of 02.04.2005

11.2.2006

Official Journal of the European Union

C 36/17

JUDGMENT OF THE COURT

(Fifth Chamber)

of 15 December 2005

in Case C-88/05: Commission of the European Communities v Republic of Finland (1)

(Failure of a Member State to fulfil obligations - Directive 2002/59/EC - Failure to transpose within the prescribed period)

(2006/C 36/33)

Language of the case: Finnish

In Case C-88/05 Commission of the European Communities (Agents: M. Huttunen and K. Simonsson) v Republic of Finland (Agent: A. Guimaraes-Purokoski) — action under Article 226 EC for failure to comply with obligations, brought on 18 February 2005 — the Court (Fifth Chamber), composed of J. Makarczyk, President of the Chamber, R. Schintgen and J. Klučka (Rapporteur), Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, gave a judgment on 15 December 2005, in which it:

Declares that, by failing to adopt within the prescribed period all the laws, regulations and administrative provisions necessary to comply with Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 establishing a Community vessel traffic monitoring and information system and repealing Council Directive 93/75/EEC, the Republic of Finland has failed to fulfil its obligations under that directive;

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

(1) OJ C 93 of 16.04.2005

11.2.2006

Official Journal of the European Union

C 36/17

JUDGMENT OF THE COURT

(Fourth Chamber)

of 8 December 2005

in Case C-115/05: Commission of the European Communities v Grand Duchy of Luxembourg (1)

(Failure of a Member State to fulfil obligations - Directive 2001/65/EC - Annual and consolidated accounts of certain types of companies - Failure to transpose within the prescribed period)

(2006/C 36/34)

Language of the case: French

In Case C-115/05 Commission of the European Communities (Agent: G. Braun) v Grand Duchy of Luxembourg (Agent: S. Schreiner) — action under Article 226 EC for failure to comply with obligations, brought on 8 March 2005 — the Court (Fourth Chamber), composed of K. Schiemann, President of the Chamber, M. Ilešič (Rapporteur) and E. Levits, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, gave a judgment on 8 December 2005, in which it:

Declares that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Directive 2001/65/EC of the European Parliament and of the Council of 27 September 2001 amending Directives 78/660/EEC, 83/349/EEC and 86/635/EEC as regards the valuation rules for the annual and consolidated accounts of certain types of companies as well as of banks and other financial institutions, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

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

(1) OJ C 106 of 30.04.2005

11.2.2006

Official Journal of the European Union

C 36/18

JUDGMENT OF THE COURT

(Fifth Chamber)

of 17 November 2005

in Case C-131/05: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (1)

(Failure by a Member State to fulfil its obligations - Directives 79/409/EEC and 92/43/EEC)

(2006/C 36/35)

Language of the case: English

In Case C-131/05, action for failure to fulfil obligations brought on 21 March 2005 pursuant to Article 226 EC, Commission of the European Communities (Agent: M. van Beek, assisted by F. Louis and A. Capobianco, lawyers) v United Kingdom of Great Britain and Northern Ireland (Agent: S. Nwaokolo) — the Court (Fifth Chamber Chamber), composed of R. Schintgen, acting for the President of the Fifth Chamber, R. Silva de Lapuerta and J. Klučka (Rapporteur), Judges; J. Kokott, Advocate General; R. Grass, Registrar, gave a judgment on 17 November 2005, the operative part of which is as follows:

By not adopting, within the prescribed period, all the measures necessary to comply with Article 6(1) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds and with Article 12(2) and Article 13(1), both read in conjunction with Article 2(1), of Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under these Directives.

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

(1) OJ C 132 of 28.5.2005.

11.2.2006

Official Journal of the European Union

C 36/18

ORDER OF THE COURT

(Sixth Chamber)

of 27 October 2005

in Case C-234/05: Reference for a preliminary ruling from the Hof van beroep te Brussel in Minister van Sociale Zaken, Staatssecretaris voor volksgezondheid v BVBA De Backer (1)

(Preliminary references - Not admissible)

(2006/C 36/36)

Language of the case: Dutch

In Case C-234/05: reference for a preliminary ruling under Article 234 EC from the Hof van beroep te Brussel (Belgium), made by decision of 25 May 2005, received at the Court on 27 May 2005, in the proceedings between Minister van Sociale Zaken, Staatssecretaris voor volksgezondheid and BVBA De Backer — the Court (Sixth Chamber), composed of J. Malenovský, President of the Chamber, A. La Pergola (Rapporteur) and J.-P. Puissochet, Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, made an order on 27 October 2005, the operative part of which is as follows:

The reference for a preliminary ruling made by the Hof van beroep te Brussel by decision of 25 May 2005 is inadmissible.

(1) OJ C 205 of 20.8.2005

11.2.2006

Official Journal of the European Union

C 36/19

Reference for a preliminary ruling from the Hoge Raad der Nederlanden by judgment of that court of 11 November 2005 in VDP Dental Laboratory N.V. v Staatssecretaris van Financiën

(Case C-401/05)

(2006/C 36/38)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by judgment of the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) of 11 November 2005, received at the Court Registry on 16 November 2005, for a preliminary ruling in the proceedings between VDP Dental Laboratory N.V. and Staatssecretaris van Financiën on the following questions:

1.	Is Article 13.A[(1)](e) of the Sixth Directive (1) to be interpreted as meaning that dental prostheses supplied by a taxable person who contracts out the manufacture thereof to a dental technician are covered by the notion of dental prostheses supplied by dental technicians?

If the answer to that question is in the affirmative:

Is Article 17(3)(a) of the Sixth Directive to be interpreted as meaning that a Member State which has exempted the abovementioned supplies from VAT must attach the right to deduct to those supplies in so far as (in particular under the first indent of Article 28b.B(1) of the Sixth Directive) they take place in another Member State which has excluded them from exemption pursuant to Article 28(3)(a) of the Sixth Directive, in conjunction with Item 2 of Annex E thereto?

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

11.2.2006

Official Journal of the European Union

C 36/19

Appeal brought on 17 November 2005 by Yassin Abdullah Kadi against the judgment made on 21 September 2005 by the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities in Case T-315/01 between Yassin Abdullah Kadi and the Council of the European Union and the Commission of the European Communities

(Case C-402/05 P)

(2006/C 36/39)

Language of the case: English

An appeal against the judgment made on 21 September 2005 by the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities in Case T-315/01 between Yassin Abdullah Kadi and the Council of the European Union and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 17 November 2005 by Yassin Abdullah Kadi, residing in Jeddah (Saudi Arabia), represented by Ian Brownlie CBE QC, David Anderson QC, Pushpinder Saini, Barrister and Guy Martin, Solicitor, with an address for service in Luxembourg.

The Appellant claims that the Court should:

a)	set aside, in whole, the decision of the Court of First Instance.

b)	make a declaration that Council Regulation (EC) No 881/2002 of 27 May 2002 (1) is void and a nullity.

c)	order that the Council and/or Commission pay the Appellant's costs of this appeal and of the proceedings before the Court of First Instance.

Pleas in law and main arguments:

The applicant submits that the Court of First Instance erred in law in holding that Art. 308 CE, in conjunction with Arts. 60 and 301 CE, was a sufficient legal basis for Regulation 881/2002.

The applicant further submits that the Court of First Instance erred in its interpretation of the relevant principles of international law:

—	the Court's judgement conflates the question of the UN Charter as a source of treaty obligations with the different question of the effects for Member States of decisions of the Security Council;

—	the Court erred in law in assuming that resolutions of the Security Council adopted under Chapter VII of the UN Charter are to be automatically inserted into the sphere of domestic law and jurisdiction;

—	the Court erred in holding that it has no power to review the lawfulness of Security Council resolutions adopted under Chapter VII of the UN Charter;

—	the reasoning of the Court exhibits a substantial inconsistency in its treatment of the principle of jus cogens;

—	the Court has failed to appreciate the legal significance of the failure of the Security Council to establish an independent international court.

(1) Council Regulation (EC) NO 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, OJ L 139, 29.5.2002, p. 9-22.

11.2.2006

Official Journal of the European Union

C 36/20

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

(Case C-410/05)

(2006/C 36/40)

Language of the case: Greek

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

The Commission claims that the Court should:

—

declare that, by not adopting, and in any event by not notifying to the Commission, the laws, regulations and administrative provisions necessary to comply with Directive 2001/97/EC (1) of the European Parliament and of the Council of 4 December 2001 amending Council Directive 91/308/EEC on prevention of the use of the financial system for the purpose of money laundering, the Hellenic Republic has failed to fulfil its obligations under that directive;

—	order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The time-limit for transposition of the directive into domestic law expired on 15 June 2003.

(1) OJ No L 344, 28.12.2001, p. 76.

11.2.2006

Official Journal of the European Union

C 36/20

Reference for a preliminary ruling from the Juzgado de lo Social No 33, Madrid, Spain, made by order of that court of 14 November 2005 in Félix Palacios de la Villa v Cortefiel Servicios SA, José María Sanz Corral and Martin Tebar Less

(Case C-411/05)

(2006/C 36/41)

Language of the case: Spanish

Reference has been made to the Court of Justice of the European Communities by order of the Juzgado de lo Social No 33, Madrid, Spain, of 14 November 2005, received at the Court Registry on 22 November 2005, for a preliminary ruling in the proceedings between Félix Palacios de la Villa and Cortefiel Servicios SA, José María Sanz Corral and Martin Tebar Less on the following questions:

Does the principle of equal treatment, which prohibits any discrimination whatsoever on the grounds of age and is laid down in Article 13 EC and Article 2(1) of Directive 2000/78, (1) preclude a national law (specifically, the first paragraph of the Single Transitional Provision of Law 14/2005 on clauses in collective agreements concerning the attainment of normal retirement age) pursuant to which compulsory retirement clauses contained in collective agreements are lawful, where such clauses provide as sole requirements that workers must have reached normal retirement age and must have fulfilled the conditions set out in the social security legislation of the Spanish State for entitlement to draw a retirement pension under their contribution regime?

In the event that the reply to the first question is in the affirmative:

Does the principle of equal treatment, which prohibits any discrimination whatsoever on the grounds of age and is laid down in Article 13 EC and Article 2(1) of Directive 2000/78, require this court, as a national court, not to apply to this case the first paragraph of the Single Transitional Provision of Law 14/2005 cited above?

(1) Council Directive 2000/78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

11.2.2006

Official Journal of the European Union

C 36/21

Reference for a preliminary ruling from the Rechtbank van Koophandel te Brussel by order of that court of 21 November 2005 in N.V. City Motors Groep v N.V. Citroën Belux

(Case C-421/05)

(2006/C 36/42)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the Rechtbank van Koophandel te Brussel (Commercial Court, Brussels) of 21 November 2005, received at the Court Registry on 29 November 2005, for a preliminary ruling in the proceedings between N.V. City Motors Groep and N.V. Citroën Belux on the following question:

Is Article 3(6) of Commission Regulation (EC) No 1400/2002 (1) of 31 July 2002 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices in the motor vehicles sector to be interpreted as precluding an express termination provision in a motor vehicle concession agreement that is intended to benefit from the exemption?

(1) OJ L 203, p. 30.

11.2.2006

Official Journal of the European Union

C 36/21

Reference for a preliminary ruling from Commissione Tributaria Regionale di Genova by order of that court of 31 January 2005 in Agenzia delle Entrate — Ufficio di Genova 1 v Porto Antico di Genova SpA

(Case C-427/05)

(2006/C 36/43)

Language of the case: Italian

Reference has been made to the Court of Justice of the European Communities by order of the Commissione Tributaria Regionale di Genova of 31 January 2005, received at the Court Registry on 1 December 2005, for a preliminary ruling in the proceedings between Agenzia delle Entrate — Ufficio di Genova 1 and Porto Antico di Genova SpA on the following questions:

Is Article 55 of DPR (Decree of the President of the Republic) No 917 of 22 December 1986 (in the version in force in the year 2000), under which EEC contributions are taken into account for the purpose of determining taxable income, compatible with Article 21(3) of Regulation No 2082/93 (1), which provides that '[t]he payments shall be made to the final beneficiaries without any deduction or retention which could reduce the amount of financial assistance to which they are entitled'?

2.	If there is a finding of incompatibility, will it apply solely to funds granted and payable by Community bodies or will it also apply to funds that are described in the SPD (Single Programming Document) as being payable by national bodies?

(1) OJ L 193, 31.7.1993 p. 20.

11.2.2006

Official Journal of the European Union

C 36/22

Reference for a preliminary ruling from the Finanzgericht Hamburg by order of that court of 21 November 2005 in Firma Laub GmbH & Co. Vieh & Fleisch Import-Export v Hauptzollamt Hamburg-Jonas

(Case C-428/05)

(2006/C 36/44)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Finanzgericht Hamburg (Germany) of 21 November 2005, received at the Court Registry on 2 December 2005, for a preliminary ruling in the proceedings between Firma Laub GmbH & Co. Vieh & Fleisch Import-Export and Hauptzollamt Hamburg-Jonas on the following question:

Is a refund within the meaning of Article 11(3), subparagraph 1, first sentence, of Commission Regulation (EEC) No 3665/87 (1) unduly paid and thus to be reimbursed, where the beneficiary presents the documents supporting payment only in the course of the procedure for repayment and after expiry of the time-limits set out in Articles 47(2) and 48(2)(a) of Commission Regulation (EEC) No 3665/87?

(1) OJ 1987 L 351, p. 1 (amended, OJ 1997 L 77, p. 12).

11.2.2006

Official Journal of the European Union

C 36/22

Reference for a preliminary ruling from the tribunal d'instance de Saintes by judgment of that court of 16 November 2005 in Max Rampion and Marie-Jeanne Rampion (née Godard) v Franfinance SA and K par K SAS

(Case C-429/05)

(2006/C 36/45)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by judgment of the tribunal d'instance de Saintes of 16 November 2005, received at the Court Registry on 2 December 2005, for a preliminary ruling in the proceedings between Max Rampion and Marie-Jeanne Rampion (née Godard) and Franfinance SA and K par K SAS on the following questions:

Are Articles 11 and 14 of Council Directive 87/102/EEC of 22 December 1986 (1) to be interpreted as allowing courts to apply the rules on interdependence between a credit agreement and a contract for the supply of goods or services that is financed by that credit in cases where the credit agreement does not refer to the goods being financed or has been concluded in the form of a credit facility without reference to the goods being financed?

2.	Does Council Directive 87/102/EEC of 22 December 1986 have an objective which extends beyond consumer protection alone to the organisation of the market and allows courts to apply of their own motion the provisions which flow from it?

(1) Council Directive 87/102/EEC of 22 December 1986 for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit (OJ 1987 L 42, p. 48).

11.2.2006

Official Journal of the European Union

C 36/22

Reference for a preliminary ruling from the Supremo Tribunal de Justiça by order of that court of 3 November 2005 in Merck Genéricos-Produtos Farmacêuticos, L.da v Merck & Co. Inc and Merck Sharp & Dohme, L.da

(Case C-431/05)

(2006/C 36/46)

Language of the case: Portuguese

Reference has been made to the Court of Justice of the European Communities by order of the Supremo Tribunal de Justiça of 3 November 2005, received at the Court Registry on 5 December 2005, for a preliminary ruling in the proceedings between Merck Genéricos-Produtos Farmacêuticos, L.da and Merck & Co. Inc and Merck Sharp & Dohme, L.da on the following questions:

1.	Does the Court of Justice of the European Communities have jurisdiction to interpret Article 33 of the TRIPs Agreement (1)?

2.	In the event of an affirmative answer to the first question, must national courts apply that article, on their own initiative or at the request of a party, in proceedings pending before them?

(1) Agreement on trade-related aspects of intellectual property rights, Annex 1C to the World Trade Organisation Agreement, approved on behalf of the Community, with regard to matters within its competence, by Council Decision 94/800/EC of 22 December 1994 (OJ L 336, 23.12.1994 p. 1).

11.2.2006

Official Journal of the European Union

C 36/23

Reference for a preliminary ruling from the Högsta Domstolen by order of that court of 24 November 2005 in Unibet (London) Ltd, Unibet (International) Ltd v Justitiekanslern

(Case C-432/05)

(2006/C 36/47)

Language of the case: Swedish

Reference has been made to the Court of Justice of the European Communities by order of the Högsta Domstolen of 24 November 2005, received at the Court Registry on 5 December 2005, for a preliminary ruling in the proceedings between Unibet (London) Ltd, Unibet (International) Ltd and Justitiekanslern on the following questions:

Is the requirement of Community law that national procedural rules must provide effective protection of an individual's rights under Community law to be interpreted as meaning that an action for a declaration that certain national substantive provisions conflict with Article 49 of the EC Treaty must be permitted to be brought in a case where the compatibility of the substantive provisions with that article may otherwise be examined only as a preliminary issue in, for example, an action for damages, proceedings concerning infringement of the national substantive provisions or judicial review proceedings?

Does the requirement of effective legal protection under Community law mean that the national legal order must provide interim protection, through which national rules which prevent the exercise of an alleged right based on Community law may be disapplied in relation to an individual so that he is able to exercise that right until the question of the existence of the right has been finally settled by a national court?

If the answer to Question 2 is in the affirmative:

Does it follow from Community law that, where the compatibility of national provisions with Community law is being challenged, in its substantive examination of an application for interim protection of rights under Community law a national court must apply national provisions governing the conditions for interim protection, or in such a situation must the national court apply Community law criteria for interim protection?

4.	If the answer to Question 3 is that Community law criteria must be applied, what are those criteria?

11.2.2006

Official Journal of the European Union

C 36/23

Reference for a preliminary ruling from the Handens Tingsrätt by order of that court of 21 November 2005 in Åklagaren v Lars Sandström

(Case C-433/05)

(2006/C 36/48)

Language of the case: Swedish

Reference has been made to the Court of Justice of the European Communities by order of the Handens Tingsrätt (Sweden) of 21 November 2005, received at the Court Registry on 5 December 2005, for a preliminary ruling in the proceedings between Åklagaren and Lars Sandström on the following questions:

(a)

Does Directive 2003/44/EC of the European Parliament and of the Council amending Directive 94/25/EC on the approximation of the laws, regulations and administrative provisions of the Member States relating to recreational craft preclude national provisions prohibiting the use of jet-skis in places other than general waterways and waters for which the local authorities give permission in accordance with Paragraph 3(1) of the jet-ski regulations (1993:1053, as amended by 2004:607)

(b)

Is a prohibition such as that referred to in Question 1(a) permissible only when the local authorities, in assessing whether permission should be granted in accordance with Paragraph 3(1), comply with the requirement that permission must always be given for areas which fulfil the criteria in Paragraph 3(1) to (3)?

2.	Do Articles 28 to 30 EC preclude such national provisions prohibiting the use of personal watercraft as referred to in Question 1(a) generally or only in the circumstances referred to in Question 1(b) above?

3.	Irrespective of the foregoing, does the failure to notify the Commission of the European Communities of the adoption of the new jet-ski prohibition on 20 June 2004 pursuant to Directive 83/189/EEC and Directive 98/34/EC preclude national provisions such as those set out above?

11.2.2006

Official Journal of the European Union

C 36/24

Reference for a preliminary ruling from the Hof van Beroep te Antwerpen by order of that court of 29 November 2005 in 1. Lucien de Graaf, and 2. Gudula Daniels v Belgian State

(Case C-436/05)

(2006/C 36/49)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the Hof van Beroep te Antwerpen of 29 November 2005, received at the Court Registry on 5 December 2005, for a preliminary ruling in the proceedings between 1. Lucien de Graaf, and 2. Gudula Daniels and Belgian State on the following questions:

1.	Is Regulation No 1408/71 (1) applicable to a supplementary crisis contribution (ACB) levied by national law that is intended to provide alternative financing of social security?

Under Article 39 EC may Belgium require a natural person, who is resident in Belgium but who carries out (virtually) all his professional activities in another Member State, to pay the supplementary crisis contribution for the financing of social security if the person concerned is not liable to pay contributions to social security in Belgium but in the State of his employment, while all other residents of the State of residence who are subject to the supplementary crisis contribution are liable to pay contributions to social security in Belgium?

3.	Does Article 39 EC permit a Member State to make a distinction whereby residents in the frontier region who work in another Member State are taxed substantially more heavily than residents who do not live in the frontier region and who also work in another Member State?

Can a resident of a Member State who performs his professional activities almost completely in another Member State (A) rely on the principle of the ‘most favourable treatment’ where the Member State provides for a more favourable fiscal treatment of other residents who also perform their professional activities almost completely in a third Member State (B)?

Does Article 39 EC or any other provision preclude a State of residence from refusing a tax deduction of a sickness insurance premium by a resident who performs his professional activities almost completely in another Member State where a similar right of deduction is in fact available both to inhabitants of the State of residence and to those in the State of employment who make no use of the freedom of movement for workers?

Does Article 39 EC or any other provision preclude the State of residence from making the tax deduction of contributions to sickness insurance conditional inter alia on this sickness insurance being concluded with a local sickness insurance fund recognised by the State of residence, when, according to the legislation of the State of residence, it is legally impossible for inhabitants of the State of residence who use their right of freedom of movement for workers to conclude supplementary sickness insurance with one of those sickness insurance funds?

(1) Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed person and to members of their families moving within the Community (OJ English Special Edition (1971)(II) p. 416).

11.2.2006

Official Journal of the European Union

C 36/25

Reference for a preliminary ruling from the Cour administrative d'appel de Douai by judgment of that court of 1 December 2005 in Roquette Frères v Ministre de l'Agriculture, de l'Alimentation, de la Pêche et de la Ruralité

(Case C-441/05)

(2006/C 36/51)

Language of the case: French

Reference has been made to the Court of Justice of the European Communities by judgment of the Cour administrative d'appel de Douai (Administrative Court of Appeal, Douai) of 1 December 2005, received at the Court Registry on 12 December 2005, for a preliminary ruling in the proceedings between Roquette Frères and Ministre de l'agriculture, de l'alimentation, de la pêche et de la ruralité (Minister for Agriculture, Food, Fisheries and Rural Affairs) on the following questions:

Could Roquette Frères undoubtedly have mounted an admissible challenge directly before it to the legality of Article 24(2) of Regulation No 1785/81 (1), Article 27(3) of Regulation No 2038/1999 (2), Article 1 of Regulation No 2073/2000 (3), Article 11(2) of Regulation No 1260/2001 (4), Article 1 of Regulation No 1745/2002 (5) and Article 1 of Regulation No 1739/2003 (6)?

If Roquette Frères can admissibly plead the illegality of those provisions, are Article 24(2) of Regulation No 1785/81, Article 27(3) of Regulation No 2038/1999, Article 1 of Regulation No 2073/2000, Article 11(2) of Regulation No 1260/2001, Article 1 of Regulation No 1745/2002 and Article 1 of Regulation No 1739/2003 valid inasmuch as they set the maximum basic quantities of isoglucose production for metropolitan France without taking into account the isoglucose produced in that Member State between 1 November 1978 and 30 April 1979 as an intermediate product used in the manufacture of other products intended for sale.

(1) Council Regulation (EEC) No 1785/81 of 30 June 1981 on the common organization of the markets in the sugar sector (OJ 1981 L 177, p. 4)

(2) Council Regulation (EC) No 2038/1999 of 13 September 1999 on the common organisation of the markets in the sugar sector (OJ 1999 L 252, p. 1)

(3) Commission Regulation (EC) No 2073/2000 of 29 September 2000 reducing, for the 2000/2001 marketing year, the guaranteed quantity under the production quotas scheme for the sugar sector and the presumed maximum supply needs of sugar refineries under the preferential import arrangements (OJ 2000 L 246, p. 38)

(4) Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector (OJ 2001 L 178, p. 1)

(5) Commission Regulation (EC) No 1745/2002 of 30 September 2002 reducing, for the 2002/2003 marketing year, the guaranteed quantity under the production quotas scheme for the sugar sector and the presumed maximum supply needs of sugar refineries under the preferential import arrangements (OJ 2002 L 263, p. 31)

(6) Commission Regulation (EC) No 1739/2003 of 30 September 2003 reducing, for the 2003/2004 marketing year, the guaranteed quantity under the production quotas for the sugar sector and the presumed maximum supply needs of sugar refineries under preferential imports (OJ 2003 L 249, p. 38)

11.2.2006

Official Journal of the European Union

C 36/26

Appeal brought on 14 December 2005 by Common Market Fertilizers SA (CMF) against the judgment given on 27 September 2005 by the First Chamber (Extended Composition) of the Court of First Instance of the European Communities in Joined Cases T-134/03 and T-135/03 between Common Market Fertilizers SA (CMF) and the Commission of the European Communities

(Case C-443/05 P)

(2006/C 36/52)

Language of the case: French

An appeal against the judgment given on 27 September 2005 by the First Chamber (Extended Composition) of the Court of First Instance of the European Communities in Joined Cases T-134/03 and T-135/03 between Common Market Fertilizers SA (CMF) and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 14 December 2005 by Common Market Fertilizers SA (CMF), represented by A. Sutton and N. Flandin, avocats.

The appellant claims that the Court should:

—	set aside the judgment under appeal in its entirety;

—	grant all of the claims submitted at first instance by the appellant;

—	order the Commission to pay the costs both of the appeal and of the proceedings at first instance.

Pleas in law and main arguments:

In support of its appeal, the appellant points out four errors of law made by the Court of First Instance consisting in:

—	an incomplete presentation of the legal context resulting in a misinterpretation of Regulation No 3319/94 (1) as to the conditions required to impose a specific duty, and an incorrect legal interpretation of the nature of the committee consulted;

—	an incomplete presentation of the facts resulting in a clear distortion of those facts, and a misapplication of Regulation No 3319/94 as to whether there is a situation of indirect invoicing;

—	an incorrect legal interpretation as regards the infringement of essential procedural requirements and specifically as regards the legal nature of the committee consulted; and

—	an incorrect legal interpretation as regards the conditions for application of Article 239 of the Community Customs Code (2) and specifically as regards the application of the condition of no obvious negligence.

(1) Council Regulation (EC) No 3319/94 of 22 December 1994 imposing a definitive anti-dumping duty on imports of urea ammonium nitrate solution originating in Bulgaria and Poland, exported by companies not exempted from the duty, and collecting definitively the provisional duty imposed (OJ L 350, 31.12.1994, p. 20)

(2) Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ L 302, 19.10.1992, p. 1)

11.2.2006

Official Journal of the European Union

C 36/26

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

(Case C-449/05)

(2006/C 36/53)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 16 December 2005 by the Commission of the European Communities, represented by C. Cattabriga and S. Visaggio, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

declare that by not taking all the necessary legal and administrative measures to comply with Directive 2003/99/EC of the European Parliament and of the Council of 17 November 2003 (1) on the monitoring of zoonoses and zoonotic agents, amending Council Decision 90/424/EEC (2) and repealing Council Directive 92/117/EEC (3), or by not notifying the Commission of such measures, the Italian Republic has failed to fulfil its obligations under the first paragraph of Article 14(1) of that directive.

2.	order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period for implementing the directive expired on 12 April 2004.

(1) OJ L 325, 12.12.2003, p. 31.

(2) OJ L 224, 18.8.1990, p. 19.

(3) OJ L 62, 15.3.1993, p. 38.

11.2.2006

Official Journal of the European Union

C 36/28

Judgment of the Court of First Instance of 29 November 2005 — Britannia Alloys & Chemicals Ltd v Commission

(Case T-33/02) (1)

(Competition - Article 81 EC - Cartel - Zinc phosphate market - Fine - Article 15(2) of Regulation No 17 - Relevant turnover - Action for annulment)

(2006/C 36/59)

Language of the case: English

Parties

Applicant(s): Britannia Alloys & Chemicals Ltd (Gravesend, United Kingdom) (represented by: S. Mobley, H. Bardell and M. Commons, Solicitors)

Defendant(s): Commission of the European Communities (represented by: R. Wainwright and F. Castillo de la Torre, Agents)

Application for

partial annulment of Commission Decision 2003/437/EC relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/37.027 — Zinc phosphate) (OJ 2003 L 153, p. 1) and, in the alternative, for reduction of the amount of the fine imposed on the applicant

Operative part of the judgment

The Court:

1)	Dismisses the application;

2)	Orders the applicant to pay the costs.

(1) OJ C 109, 4.5.2002.

11.2.2006

Official Journal of the European Union

C 36/28

Judgment of the Court of First Instance of 6 December 2005 — Brouwerij Haacht v Commission

(Case T-48/02) (1)

(Competition - Cartels - Fines - Guidelines on the method of setting fines - Effective capacity of the offender to cause significant damage to other operators - Attenuating circumstances - Leniency Notice)

(2006/C 36/60)

Language of the case: Dutch

Parties

Applicant: Brouwerij Haacht NV (Boortmeerbeek, Belgium) (represented by: Y. van Gerven, F. Louis and H. Viaene, lawyers)

Defendant: Commission of the European Communities (represented by: A. Bouquet and W. Wils, Agents)

Application for

annulment of, and in the alternative for a reduction in the fine imposed on the applicant by, Article 4 of Commission Decision 2003/569/EC of 5 December 2001 relating to a proceeding under Article 81 of the EC Treaty (Case IV/37.614/F3 PO/Interbrew and Alken-Maes) (OJ 2003 L 200, p. 1)

Operative part of the judgment

The Court:

1)	Dismisses the application;

2)	Orders the applicant to pay the costs.

(1) OJ C 109, 4.5.2002.

11.2.2006

Official Journal of the European Union

C 36/29

Judgment of the Court of First Instance of 29 November 2005 — SNCZ v Commission

(Case T-52/02) (1)

(Competition - Article 81 EC - Cartel - Zinc phosphate market - Fine - Article 15(2) of Regulation No 17 - Principles of proportionality and equal treatment - Action for annulment)

(2006/C 36/61)

Language of the case: French

Parties

Applicant(s): Société nouvelle des couleurs zinciques SA (SNCZ) (Bouchain, France) (represented by: R. Saint-Esteben and H. Calvet, lawyers)

Defendant(s): Commission of the European Communities (represented by: F. Castillo de la Torre and F. Lelievre, and subsequently by F. Castillo de la Torre and O. Beynet, Agents)

Application for

the annulment of Decision 2003/437/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/37.027 — Zinc phosphate) (OJ 2003 L 153, p. 1) and, in the alternative, for reduction of the amount of the fine imposed on the applicant

Operative part of the judgment

The Court:

1)	Dismisses the application;

2)	Orders the applicant to pay the costs.

(1) OJ C 109, 4.5.2002.

11.2.2006

Official Journal of the European Union

C 36/29

Judgment of the Court of First Instance of 29 November 2005 — Union Pigments v Commission

(Case T-62/02) (1)

(Competition - Article 81 EC - Cartel - Zinc phosphate market - Fine - Article 15(2) of Regulation No 17 - Gravity and duration of the infringement - Principles of proportionality and equal treatment - Action for annulment)

(2006/C 36/62)

Language of the case: English

Parties

Applicant(s): Union Pigments AS (Bergen, Norway) (represented by: J. Magne Langseth and T. Olavson Laake, lawyers)

Defendant(s): Commission of the European Communities (represented by: F. Castillo de la Torre, Agent)

Application for

partial annulment of Decision 2003/437/EC relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/37.027 — Zinc phosphate) (OJ 2002 L 153, p. 1) and, in the alternative, for reduction of the amount of the fine imposed on the applicant,

Operative part of the judgment

The Court:

1)	Dismisses the application;

2)	Orders the applicant to pay the costs, including those of the application for interim measures.

(1) OJ C 131, 1.6.2002.

11.2.2006

Official Journal of the European Union

C 36/29

Judgment of the Court of First Instance of 29 November 2005 — Heubach v Commission

(Case T-64/02) (1)

(Competition - Article 81 EC - Cartel - Zinc phosphate market - Fine - Guidelines on the method of setting fines - Action for annulment - Objection of illegality - Article 15(2) of Regulation No 17 - Gravity of the infringement - Principles of proportionality and equal treatment - Statement of reasons)

(2006/C 36/63)

Language of the case: German

Parties

Applicant(s): Dr Hans Heubach GmbH & Co. KG (Langelsheim, Germany) (represented by: F. Montag and G. Bauer, lawyers)

Defendant(s): Commission of the European Communities (represented by: F. Castillo de la Torre, acting as Agent, assisted by H. J. Freund, lawyer)

Application for

partial annulment of Commission Decision 2003/437/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/37.027 — Zinc phosphate) (OJ 2003 L 153, p. 1) and, in the alternative, for reduction of the amount of the fine imposed on the applicant

Operative part of the judgment

The Court:

1)	Dismisses the application;

2)	Orders the applicant to pay the costs.

(1) OJ C 144, 15.6.2002.

11.2.2006

Official Journal of the European Union

C 36/30

Judgment of the Court of First Instance of 30 November 2005 — Vanlangendonck v Commission

(Case T-361/03) (1)

(Officials - Open competition - Non-inclusion on the reserve list - Infringement of the competition notice - Equality of treatment)

(2006/C 36/64)

Language of the case: French

Parties

Applicant(s): Philippe Vanlangendonck (Overijse, Belgium) (represented by: B. Laurent, lawyer)

Defendant(s): Commission of the European Communities (represented by: J. Currall, Agent)

Application for

Annulment of the decision of the selection board in competition COM/A/10/01 not to include the applicant on the reserve list of that competition and for damages

Operative part of the judgment

The Court:

1)	Dismisses the application;

2)	Orders each party to bear its own costs.

(1) OJ C 7, 10.1.2004.

11.2.2006

Official Journal of the European Union

C 36/30

Judgment of the Court of First Instance of 30 November 2005 — Almdudler-Limonade v OHIM

(Case T-12/04) (1)

(Community trade mark - Three-dimensional mark - Shape of a lemonade bottle - Refusal to register - Article 7(1)(b) of Regulation (EC) No 40/94)

(2006/C 36/65)

Language of the case: German

Parties

Applicant: Almdudler-Limonade A. & S. Klein (Vienna, Austria) (represented by: G. Schönherr, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, Agent)

Action

brought against the decision of the Second Chamber of the Board of Appeal of OHIM of 5 November 2003 (Case R 490/2003-2) in relation to the registration of a three-dimensional mark in the shape of a lemonade bottle

Operative part of the judgment

The Court:

1.	Dismisses the application;

2.	Orders the applicant to pay the costs.

(1) OJ C 106, 30.4.2004.

11.2.2006

Official Journal of the European Union

C 36/31

Order of the Court of First Instance of 16 November 2005 — Deutsche Post and Securicor Omega Express v Commission

(Case T-343/03) (1)

(State aid - Article 88(3) EC - Action for annulment - Admissibility - Complaint - Rejection - Lack of subject matter)

(2006/C 36/66)

Language of the case: German

Parties

Applicant: Deutsche Post AG (Bonn, Germany) and Securicor Omega Express (Sutton, Surrey, United Kingdom) (represented by: T. Lübbig, lawyer)

Defendant: Commission of the European Communities (represented by: V. Kreuschitz, N. Khan and M. Niejahr, Agents)

Party intervening in support of the defendant: United Kingdom of Great Britain and Northern Ireland (represented by: M. Bethell, Agent)

Application for

Annulment of Commission Decision C (2003) 1652 final of 27 May 2003, which states that the measures which the United Kingdom authorities propose to adopt for Post Office Ltd are compatible with the common market (State aid N 784/2002)

Operative part of the Order

1.	The action is dismissed as inadmissible.

2.	Each party shall bear its own costs.

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

(1) OJ C 7, 10.1.2004.

11.2.2006

Official Journal of the European Union

C 36/31

Order of the Court of First Instance of 21 November 2004 — Tramarin v Commission

(Case T-426/04) (1)

(Action for annulment - Admissibility - State aid - Commission request to amend a notified aid scheme - Actionable measure - Measure having legal effect - Time-limit - Point from which time starts to run - Summary publication in the Official Journal - Internet site)

(2006/C 36/67)

Language of the case: Italian

Parties

Applicant: Tramarin Snc di Tramarin Andrea e Sergio (Montagnana, Italy) (represented by: M. Calabrese, lawyer)

Defendant: Commission of the European Communities (represented by: V. Di Bucci, Agent)

Application for

Annulment, first, of a Commission letter requesting the Italian authorities to amend an aid project notified and, second, of the decision of the Commission of 12 July 2000 declaring compatible with the common market an aid scheme for investment in depressed regions of Italy (State aid N 715/99 — (SG 2000 D/105754)

Operative part of the Order

1.	The application is dismissed as inadmissible.

2.	The applicant shall pay its own costs in addition to those of the Commission.

(1) OJ C 314, 18.12.2004.

11.2.2006

Official Journal of the European Union

C 36/32

Order of the Court of First Instance of 23 November 2005 — Ruiz Bravo-Villasante v Commission

(Case T-507/04) (1)

(Officials - Action for annulment - Time-limit - Inadmissibility)

(2006/C 36/68)

Language of the case: Spanish

Parties

Applicant: Arturo Ruiz Bravo-Villasante (Madrid, Spain) (represented by: J. Fuertes Suárez, lawyer)

Defendant: Commission of the European Communities (represented by: J. Currall and L. Lozano Palacios, Agents)

Application for

Annulment of the decision of the selection board for competition COM/B/2/02 to award the applicant a mark lower than the pass mark in the oral test and not to include him on the reserve list for that competition

Operative part of the Order

1.	The application is dismissed as inadmissible.

2.	Each party shall bear its own costs.

(1) OJ C 115, 14.5.2005.

11.2.2006

Official Journal of the European Union

C 36/32

Action brought on 18 November 2005 — Gerolf Annemans v Commission of the European Communities

(Case T-411/05)

(2006/C 36/69)

Language of the case: Dutch

Parties

Applicant: Gerolf Annemans (represented by: C. Symons, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

—	Declare void the European Commission's decision of 5 September 2005 (Case COMP/39.225) in accordance with the first paragraph of Article 231 of the EC Treaty.

Pleas in law and main arguments

The applicant states that he has lodged a complaint against Belgacom and Telenet with the Commission, alleging infringement of Articles 81 and 82 EC on the market for broadband internet connections to end users.

In response, the Commission informed the applicant that at that time it saw no reason, in view of the facts alleged by the applicant, to initiate a further investigation and that its point of view, based on the information available to its services, is provisional whilst awaiting additional indications that the applicant might wish to submit.

The applicant submits, first, that it is not for the complainant to search for proof of his complaint, but that this is for the Commission itself on the basis of the substantive presumptions, advanced by the complainant.

According to the applicant, the Commission's statement that providers often determine their prices by reference to the market leader is an insufficient explanation regarding the question whether the almost non-existent difference between the internet prices of Telecom and Telenet is a result of pure coincidence in the free market or of a breach of Article 81 EC.

The applicant also submits that although higher prices in Belgium, cited by him in his application, do not in themselves prove that there has been an infringement of Article 82 EC, neither do they prove that there has been no infringement. For that reason the Commission cannot, on that basis, clear the undertakings at issue of infringements of Article 82 EC.

The applicant also states that the Commission is wrong to doubt that Belgacom, and Telenet have a dominant position on the Belgian market. The applicant states that both operators apply approximately the same high prices and between them have almost 90 % of the Belgian market for broadband Internet access. The applicant also submits that no conclusion may be drawn from the fact that there are competitive and lower-price internet connections with lower download speed on the market. According to the applicant, the Commission contradicts itself moreover when it argues that, on the one hand, the Belgisch Instituut voor Postdiensten en Telecommunicatie (BIPT) guarantees competition and, on the other hand, that this institution is currently investigating whether competition on the Belgian market is indeed thoroughly guaranteed.

Finally, the applicant submits that the Commission fails to substantiate its claim that there is an insufficient community interest.

11.2.2006

Official Journal of the European Union

C 36/33

Action brought on 22 November 2005 — NHL Enterprises/OHIM

(Case T-414/05)

(2006/C 36/70)

Language in which the application was lodged: English

Parties

Applicant: NHL Enterprises B.V. (Rijswijk, The Netherlands) [represented by: G. Llewelyn, Solicitor]

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal: Glory & Pompea (Mataró, Spain)

Form of order sought

—	Annul the contested decision;

—	order OHIM and the intervener to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The figurative mark ‘LA KINGS’ for goods in classes 16, 25 and 41 — application No 1 041 102

Proprietor of the mark or sign cited in the opposition proceedings: Manufacturas Antonio Gassol S.A. The mark cited in the opposition was later assigned to Glory & Pompea, S.A.

Mark or sign cited: The national figurative mark ‘KING’ for goods in class 25

Decision of the Opposition Division: Opposition upheld for all the goods applied for in class 25

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 as the degree of similarity between the marks at issue, notwithstanding the identity of the goods, is not sufficiently high.

11.2.2006

Official Journal of the European Union

C 36/33

Action brought on 25 November 2005 — Vischim v Commission

(Case T-420/05)

(2006/C 36/71)

Language of the case: English

Parties

Applicant: Vischim Srl (Milan, Italy) [represented by: C. Mereu, K. Van Maldegem, lawyers]

Defendant: Commission of the European Communities

Form of order sought

—

Order the partial annulment of Commission Directive 2005/53/EC in so far as it includes entry no. 102, corresponding to the plant protection active substance chlorothalonil, in Annex I to the Plant Protection Products Directive (‘PPPD’), with a purity specification that does not correspond to the specification notified to and evaluated by the Commission and the Standing Committee on Plant Health; in the alternative, immediately to modify entry no. 102 to reflect the new FAO specification of November 2005;

—	order the partial annulment of the Review Report underlying the inclusion of chlorothalonil in Annex I to Directive 91/414 insofar as it does not recognise the status of 'main data submitter' to the applicant and fails to list the applicant's data in Appendix IIIA thereto;

—	order the defendant to comply with its obligations under Community law and act on the applicant's request;

—

order the defendant to compensate the applicant in the provisional amount of 1 (one) Euro for damages suffered as a result of the contested measure, or, in the alternative, as a result of the Defendant's failure to comply with its obligations under Community law by failing to respond to the applicant, as well as any applicable interests, pending the exact calculation and determination of the exact amount;

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

Pleas in law and main arguments

The applicant produces chlorothalonil -based plant protection products and, therefore, has an interest in securing the inclusion of that substance in Annex I of the PPPD (1), which would allow it to continue with the production of its product. It thus contests Directive 2005/53 (2) insofar as it includes this substance in Annex I but with a specification that would operate to exclude the product the applicant produces.

In support of this application the applicant first invokes a number of alleged procedural flaws of the contested measure, as well as a number of substantive legal flaws. From a procedural standpoint, the applicant contends that it was unlawfully rejected as a main data submitter and that its studies were unlawfully removed from Appendix IIIA to the review report. In this context, it also alleges that the current version of that report cannot have been approved by the Standing Committee, since it is posterior to the latter's meeting approving the review report. It also alleges that it was excluded from certain critical meetings and/or exchanges, in violation of procedural safeguards provided for in the PPPD and Regulation 3600/92 (3) and that its chlorothalonil specification was unlawfully withdrawn from Annex I to the PPPD despite the reliance on its data. The applicant also challenges the Commission's decision to rely on a new FAO specification for changing the chlorothalonil specification under the PPPD, submitting that such a change was not scientifically necessary.

The applicant further contends that its own chlorothalonil specification meets the requirements of Article 5 and therefore the Commission was obliged, under this latter provision as well as Article 95 EC, to include it in Annex I. It also considers that the principle of subsidiarity was violated in that the Commission followed a ‘maximal standard’ for chlorothalonil, violating the Member States' prerogative when making re-registration decisions under the PPPD. Also, the applicant invokes the violation of the principle of sound administration enshrined in Article 211 EC as well as the violation of Article 13 of the PPPD and of the applicant's legal rights and legitimate expectations.

Moreover, the applicant contends that the contested measure violates its rights to a fair hearing, its right of defence, the Commission's duty to state reasons and fundamental Community law principles such as proportionality, legitimate expectations, legal certainty and equal treatment. It also allegedly violates the applicant's right to property since it deprives the applicant of its right to conduct business activities. Further, the applicant considers that the contested measure distorts competition to the extent that it effectively creates a monopoly for a competitor's product, allegedly the only one conforming to the specification adopted.

In the alternative, the applicant attacks the Commission's alleged failure to act upon its formal request to either formally adopt the contested measure with an amended chemical identity/purity definition satisfying the applicant's submissions or to refrain from adopting it in its current form pending a decision on a different chemical identity/purity definition.

The applicant finally requests compensation for the damages it allegedly incurred due to its inability to continue marketing of its plant protection products based on chlorothalonil.

(1) Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market OJ L 230, 19/08/1991, p. 1.

(2) Commission Directive 2005/53/EC of 16 September 2005 amending Council Directive 91/414/EEC to include chlorothalonil, chlorotoluron, cypermethrin, daminozide and thiophanate-methyl as active substances, OJ L 241, 17/09/2005, p. 51.

(3) Commission Regulation (EEC) No 3600/92 of 11 December 1992 laying down the detailed rules for the implementation of the first stage of the programme of work referred to in Article 8 (2) of Council Directive 91/414/EEC concerning the placing of plant protection products on the market, OJ L 366, 15/12/1992, p. 10, as last amended by Regulation (EC) No 2266/2000, OJ L 259, 13/10/2000, p. 27.

11.2.2006

Official Journal of the European Union

C 36/34

Action brought on 8 December 2005 — EMC Development v Commission

(Case T-432/05)

(2006/C 36/72)

Language of the case: English

Parties

Applicant(s): EMC Development AB (Lulea, Sweden) [represented by: M. Elvinger, lawyer]

Defendant(s): Commission of the European Communities

Form of order sought

—	Annul the Commission's decision dated 28th September 2005 rejecting the applicant's complaint pursuant to Article 3(2) of Council regulation 17/62;

—	order the Commission to pay the costs.

Pleas in law and main arguments

The applicant is a corporate body inter alia responsible for the continued testing and further research and development regarding an alternative cement product known as energetically modified cement. The applicant introduced a complaint before the Commission under Regulation 17/62, accusing the European producers of Portland cement (the type of cement which is predominant in the European market) of a series of behaviours constituting serious violations of Article 81 EC. More specifically, the complaint concerned the EN 197-1 standard, adopted in the context of directive 89/106 (1). According to the applicant, this standard was purposefully designed to favour existing major players in the market to the exclusion of other cement producers or market challenging products and technologies. This was allegedly achieved through close cooperation between the technical sub-committee of the European Committee for standardisation and CEMBUREAU, the duly appointed trade association of European cement producers, the vast majority of whose members are well established Portland cement producers.

The applicant now challenges the decision rejecting its complaint. It alleges that the offending standard amounts to a horizontal cooperation agreement in violation of Article 81 EC. In the alternative, the applicant contends that the standard breaches the aims of Articles 28 and 29 EC and cannot, in any event, be justified at a Member State level under Article 30 EC.

(1) Council Directive 89/106 of 21 December 1998 on the approximation of laws, regulations and administrative provisions of the Member States relating to Construction products, OJ L 40 11.12.1989, p.12

11.2.2006

Official Journal of the European Union

C 36/35

Action brought on 18 November 2005 — Sanchez Ferriz v Commission

(Case T-433/05)

(2006/C 36/73)

Language of the case: French

Parties

Applicant: Carlos Sanchez Ferriz (Brussels, Belgium) (represented by: F. Frabetti, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

—	Annul the list of officials promoted under the 2004 exercise (1), insofar as that list does not include his name, and, as an incidental plea, the preparatory measures for that decision;

—	Annul the allocation of promotion points during the 2004 exercise, in particular, following the recommendations of the promotion committees;

—	Order the Commission of the European Communities to pay the costs.

Pleas in law and main arguments

The applicant, a Commission official, challenges the decision not to promote him during the 2004 exercise. In support of his action, he submits that the definitive version of his career development report for the period from 1 July 2001 to 31 December 2002 had not been compiled by the time the contested decision was adopted. In addition, he is of the opinion that when allocating 'priority points' to officials for the purpose of their classification with a view to promotion, the Commission gave excessive weight to the 'remainder' of the officials who, although they had reached the promotion threshold, had not been promoted during the earlier exercises. The applicant also levels a more general criticism against the allocation of points which, he states, fails to comply with the requirement to carry out a comparative examination of merits for the purpose of promotion.

On that basis, the applicant alleges infringement of Article 45 of the Staff Regulations, and of the General Implementing Provisions and the Commission's Administrative Guide for assessment and promotion, infringement of the principle of non-discrimination, infringement of the principle of prohibition against arbitrary treatment, infringement of the duty to give reasons, infringement of the principle of the protection of legitimate expectations and infringement of the duty to have regard for the interests of officials.

(1) List published in Administrative Notice No 130 - of 30.11.2004

		ISSN 1725-2423
Official Journal of the European Union		C 36

English edition	Information and Notices	Volume 49 11 February 2006

Notice No	Contents	page
	I Information
	Court of Justice
	COURT OF JUSTICE
2006/C 036/1	Judgment of the Court (Grand Chamber) of 22 November 2005 in Case C-384/02: Reference for a preliminary ruling from the Københavns Byret in the criminal proceedings against Knud Grøngaard, Allan Bang (Directive 89/592/EEC — Insider dealing — Disclosure of inside information to third parties — Prohibition)	1

2006/C 036/2	Judgment of the Court (Second Chamber) of 1 December 2005 in Case C-46/03: United Kingdom of Great Britain and Northern Ireland v Commission of the European Communities (Structural funds — Decommitment of amounts — Conditions — Manchester/Salford/Trafford 2 (MST 2) Programme)	2

2006/C 036/3	Judgment of the Court (Grand Chamber) of 13 December 2005 in Case C-78/03 P: Commission of the European Communities v Aktionsgemeinschaft Recht und Eigentum eV (Appeal — Aid granted by the German authorities for the acquisition of land — Scheme for privatisation of land and restructuring of agriculture in the new Länder)	2

2006/C 036/4	Judgment of the Court (First Chamber) of 24 November 2005 in Joined Cases C-138/03, C-324/03 and C-431/03: Italian Republic v Commission of the European Communities (Action for annulment — Structural funds — Co-financing — Regulations (EC) No 1260/1999 and No 1685/2000 — Conditions concerning the eligibility of payments on account made by national bodies within the framework of State aid schemes)	3

2006/C 036/5	Judgment of the Court (First Chamber) of 8 December 2005 in Case C-220/03: European Central Bank v Federal Republic of Germany (Protocol on the Privileges and Immunities of the European Communities — Agreement on the seat of the European Central Bank — Arbitration clause — Immovable property leased by the ECB — Indirect taxes passed on in leasing or letting charges)	3

2006/C 036/6	Judgment of the Court (Second Chamber) of 1 December 2005 in Case C-301/03: Italian Republic v Commission of the European Communities (Structural funds — Eligibility of expenditure — Amendments to programme complements — Inadmissibility)	4

2006/C 036/7	Judgment of the Court (Grand Chamber) of 15 November 2005 in Case C-320/03: Commission of the European Communities v Republic of Austria (Failure by a Member State to fulfil its obligations — Articles 28 EC to 30 EC — Free movement of goods — Articles 1 and 3 of Regulation (EEC) No 881/92 — Articles 1 and 6 of Regulation (EEC) No 3118/93 — Transport — Sectoral prohibition on the movement of lorries of more than 7.5 tonnes carrying certain goods — Air quality — Protection of health and the environment — Proportionality principle)	4

2006/C 036/8	Judgment of the Court (Grand Chamber) of 13 December 2005 in Case C-411/03, Reference for a preliminary ruling from the Landgericht Koblenz in proceedings against SEVIC Systems AG (Freedom of establishment — Articles 43 EC and 48 EC — Cross-border mergers — Refusal of registration in the national commercial register — Compatibility)	5

2006/C 036/9	Judgment of the Court (Grand Chamber) of 13 December 2005 in Case C-446/03, Reference for a preliminary ruling from the High Court of Justice of England and Wales, Chancery Division Marks & Spencer plc v David Halsey (Her Majesty's Inspector of Taxes) (Articles 43 EC and 48 EC — Corporation tax — Groups of companies — Tax relief — Profits of parent companies — Deduction of losses incurred by a resident subsidiary — Allowed — Deduction of losses incurred in another Member State by a non-resident subsidiary — Not included)	5

2006/C 036/0	Judgment of the Court (Grand Chamber) of 6 December 2005 in Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04; reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen's Bench Division (Administrative Court): The Queen, on the application of: ABNA Ltd, Denis Brinicombe, BOCM Pauls Ltd, Devenish Nutrition Ltd, Nutrition Services (International) Ltd, Primary Diets Ltd v Secretary of State for Health, Food Standards Agency (C-453/03); references from the Consiglio di Stato: Fratelli Martini & C. SpA, Cargill Srl, v Ministero delle Politiche Agricole e Forestali, Ministero della Salute, Ministero delle Attività Produttive (C-11/04) and Ferrari Mangimi Srl, Associazione nazionale tra i produttori di alimenti zootecnici (Assalzoo) v Ministero delle Politiche Agricole e Forestali, Ministero della Salute, Ministero delle Attività Produttive (C-12/04); reference for a preliminary ruling from the Rechtbank 's-Gravenhage: Nederlandse Vereniging Diervoederindustrie (Nevedi) v Productschap Diervoeder (C-194/04) (Animal health and public health requirements — Composite feedingstuffs for animals — Indication of the exact percentage of the components of a product — Infringement of the principle of proportionality)	6

2006/C 036/1	Judgment of the Court (Grand Chamber) of 6 December 2005 in Case C-461/03: reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven Gaston Schul Douane-expediteur BV v Minister van Landbouw, Natuur en Voedselkwaliteit (Article 234 EC — Obligation on a national court to seek a preliminary ruling — Invalidity of a provision of Community law — Sugar — Additional import duty — Regulation (EC) No 1423/95 — Article 4)	7

2006/C 036/2	Judgment of the Court (Fourth Chamber) of 24 November 2005 in Case C-506/03: Federal Republic of Germany v Commission of the European Communities (Subsidies — Feasibility study — Contract for the assignment of intellectual property rights)	7

2006/C 036/3	Judgment of the Court (Second Chamber) of 1 December 2005 in Case C-14/04, Reference for a preliminary ruling from the Conseil d'État, Abdelkader Dellas and Others v Premier ministre and Others (Social policy — Protection of the safety and health of workers — Directive 93/104/CE — Concept of working time — Scope — National legislation providing for a ceiling more favourable to workers, in particular as regards maximum weekly working time — Determination of working time in certain social establishments — On-call duty where the worker is required to be present at the workplace — Periods of inactivity on the part of the worker in the context of such duty — National system of calculation of hours of presence differentiated according to the intensity of the activity)	8

2006/C 036/4	Judgment of the Court (Second Chamber) of 8 December 2005 in Case C-33/04: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Telecommunications — Directive 97/33/EC — Article 7(5) — Obligation to verify the compliance of cost accounting systems by a competent independent body and to publish a statement of compliance — Directive 98/10/EC — Article 18(1) and (2) — Failure to apply correctly the measures adopted as regards verification of the compliance of the cost accounting system by the national regulatory authority and the annual publication of a statement of compliance — Admissibility — Interest in bringing proceedings — Pre-litigation procedure — Rights of the defence — Directives 2002/19/EC, 2002/21/EC and 2002/22/EC — Transitional provisions — Member States to refrain, during the period laid down for transposition of a directive, from taking any measures liable seriously to compromise the result prescribed by that directive — Reference interconnection offers)	8

2006/C 036/5	Judgment of the Court (Third Chamber) of 15 December 2005 in Case C-63/04: Reference for a preliminary ruling from the High Court of Justice of England and Wales, Chancery Division Centralan Property Ltd v Commissioners of Customs & Excise (Sixth VAT Directive — Article 20(3) — Capital goods — Deduction of input tax — Adjustments of deductions — Immovable property — Disposal by means of two connected transactions, one exempt, the other taxable — Apportionment)	9

2006/C 036/6	Judgment of the Court (Grand Chamber) of 6 December 2005 in Case C-66/04: United Kingdom of Great Britain and Northern Ireland v European Parliament, Council of the European Union (Foods — Regulation (EC) No 2065/2003 — Smoke flavourings — Choice of legal basis)	9

2006/C 036/7	Judgment of the Court (Fifth Chamber) of 24 November 2005 in Case C-136/04: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) Deutsches Milch-Kontor GmbH v Hauptzollamt Hamburg-Jonas (Export refunds — Regulations (EEC) Nos 804/68, 1706/89 and 3445/89 — Cheeses intended for processing in a third country)	10

2006/C 036/8	Judgment of the Court (Grand Chamber) of 22 November 2005 in Case C-144/04 Reference for a preliminary ruling from the Arbeitsgericht München Werner Mangold v Rüdiger Helm (Directive 1999/70/EC — Clauses 2, 5 and 8 of the Framework Agreement on fixed-term work — Directive 2000/78/EC — Article 6 — Equal treatment as regards employment and occupation — Age discrimination)	10

2006/C 036/9	Judgment of the Court (Second Chamber) of 15 December 2005 in Case C-148/04 (Reference for a preliminary ruling from the Commissione tributaria provinciale di Genova) Unicredito Italiano SpA v Agenzia delle Entrate, Ufficio Genova 1 (State aid — Decision 2002/581/EC — Tax advantages granted to banks — Statement of reasons for a decision — Categorisation as State aid — Conditions — Compatibility with the common market — Conditions — Article 87(3)(b) and (c) EC — Important project of common European interest — Development of certain activities — Tax advantages granted previously — Recovery of the aid — Principle of the protection of legitimate expectations — Principle of legal certainty — Principle of proportionality)	11

2006/C 036/0	Judgment of the Court (Second Chamber) of 27 October 2005 in Joined Cases C-187/04 and C-188/04: Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 93/37/EEC — Public works contracts — Public works concessions — Rules on advertising)	11

2006/C 036/1	Judgment of the Court (Third Chamber) of 1 December 2005 in Case C-213/04: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) Ewald Burtscher v Josef Stauderer (Free movement of capital — Article 56 EC — Declaration procedure in respect of the acquisition of built-on land — Retroactive invalidity of the transaction if declaration by the purchaser is submitted after the due date)	12

2006/C 036/2	Judgment of the Court (Fifth Chamber) of 15 December 2005 in Case C-250/04: Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 2002/19/EC — Access to electronic communications networks and associated facilities — Failure to transpose within the prescribed period)	12

2006/C 036/3	Judgment of the Court (Fifth Chamber) of 15 December 2005 in Case C-253/04: Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 2002/21/EC — Electronic communications networks and services — Common regulatory framework — Failure to transpose within the prescribed period)	13

2006/C 036/4	Judgment of the Court (Fifth Chamber) of 15 December 2005 in Case C-254/04: Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 2002/20/EC — Electronic communications networks and services — Authorisation — Failure to transpose within the prescribed period)	13

2006/C 036/5	Judgment of the Court (Third Chamber) of 8 December 2005 in Case C-280/04 Reference for a preliminary ruling from the Vestre Landsret (Denmark) Jyske Finans A/S v Skatteministeriet (Sixth VAT Directive — Article 13B(c) — Exemptions — Exemption of supplies of goods excluded from the right to deduct — Resale of motor cars purchased second-hand by a leasing company — Article 26a — Special arrangements for sales of second-hand goods)	13

2006/C 036/6	Judgment of the Court (First Chamber) of 24 November 2005 in Case C-366/04: Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat Salzburg in Georg Schwarz v Bürgermeister der Landeshauptstadt Salzburg (Free movement of goods — Quantitative restrictions — Measures having equivalent effect — National legislative provision prohibiting the sale of non-packaged confectionery from vending machines — Hygiene of foodstuffs)	14

2006/C 036/7	Judgment of the Court (Sixth Chamber) of 17 November 2005 in Case C-378/04: Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Risks related to exposure to carcinogens and mutagens — Failure to transpose within the prescribed period)	14

2006/C 036/8	Judgment of the Court (Third Chamber) of 1 December 2005 in Joined Cases C-394/04 and C-395/05, References for a preliminary ruling from the Simvoulio tis Epikratias, Diagnostiko & Therapeftiko Kentro Athinon-Ygeia AE v Ipourgos Ikonomikon (Sixth VAT Directive — Article 13A(1)(b) — Exemptions — Activities closely related to hospital and medical care — Provision of telephone services and hiring out of televisions to in-patients — Provision of beds and meals to persons accompanying in-patients)	15

2006/C 036/9	Judgment of the Court (Fourth Chamber) of 8 December 2005 in Case C-445/04: Possehl Erzkontor GmbH v Hauptzollamt Duisburg (Common Customs Tariff — Tariff classification — Subheading 2519 90 10 — Fused magnesia obtained by fusion in an electric arc furnace of magnesite that has previously been caustic-burned — Fused magnesia)	15

2006/C 036/0	Judgment of the Court (Sixth Chamber) of 17 November 2005 in Case C-22/05: Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Directive 93/104/EC — Working conditions — Organisation of working time — Failure to transpose within the prescribed period)	16

2006/C 036/1	Judgment of the Court (Fifth Chamber) of 8 December 2005 in Case C-38/05: Commission of the European Communities v Ireland (Failure of a Member State to fulfil obligations — Regulation (EEC) No 2847/93 — Control system within the fisheries sector — Information on types and quantities of fish landed and on fishing effort)	16

2006/C 036/2	Judgment of the Court (Sixth Chamber) of 15 December 2005 in Case C-67/05: Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Directive 2000/60/EC — Community action in the field of water policy — Failure to transpose within the prescribed period)	17

2006/C 036/3	Judgment of the Court (Fifth Chamber) of 15 December 2005 in Case C-88/05: Commission of the European Communities v Republic of Finland (Failure of a Member State to fulfil obligations — Directive 2002/59/EC — Failure to transpose within the prescribed period)	17

2006/C 036/4	Judgment of the Court (Fourth Chamber) of 8 December 2005 in Case C-115/05: Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2001/65/EC — Annual and consolidated accounts of certain types of companies — Failure to transpose within the prescribed period)	17

2006/C 036/5	Judgment of the Court (Fifth Chamber) of 17 November 2005 in Case C-131/05: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Failure by a Member State to fulfil its obligations — Directives 79/409/EEC and 92/43/EEC)	18

2006/C 036/6	Order of the Court (Sixth Chamber) of 27 October 2005 in Case C-234/05: Reference for a preliminary ruling from the Hof van beroep te Brussel in Minister van Sociale Zaken, Staatssecretaris voor volksgezondheid v BVBA De Backer (Preliminary references — Not admissible)	18

2006/C 036/7	Case C-400/05: Reference for a preliminary ruling from the Hoge Raad der Nederlanden by order of that court of 11 November 2005 in B.A.S. Trucks B.V. v Staatssecretaris van Financiën	19

2006/C 036/8	Case C-401/05: Reference for a preliminary ruling from the Hoge Raad der Nederlanden by judgment of that court of 11 November 2005 in VDP Dental Laboratory N.V. v Staatssecretaris van Financiën	19

2006/C 036/9	Case C-402/05 P: Appeal brought on 17 November 2005 by Yassin Abdullah Kadi against the judgment made on 21 September 2005 by the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities in Case T-315/01 between Yassin Abdullah Kadi and the Council of the European Union and the Commission of the European Communities	19

2006/C 036/0	Case C-410/05: Action brought on 21 November 2005 by the Commission of the European Communities against the Hellenic Republic	20

2006/C 036/1	Case C-411/05: Reference for a preliminary ruling from the Juzgado de lo Social No 33, Madrid, Spain, made by order of that court of 14 November 2005 in Félix Palacios de la Villa v Cortefiel Servicios SA, José María Sanz Corral and Martin Tebar Less	20

2006/C 036/2	Case C-421/05: Reference for a preliminary ruling from the Rechtbank van Koophandel te Brussel by order of that court of 21 November 2005 in N.V. City Motors Groep v N.V. Citroën Belux	21

2006/C 036/3	Case C-427/05: Reference for a preliminary ruling from Commissione Tributaria Regionale di Genova by order of that court of 31 January 2005 in Agenzia delle Entrate — Ufficio di Genova 1 v Porto Antico di Genova SpA	21

2006/C 036/4	Case C-428/05: Reference for a preliminary ruling from the Finanzgericht Hamburg by order of that court of 21 November 2005 in Firma Laub GmbH & Co. Vieh & Fleisch Import-Export v Hauptzollamt Hamburg-Jonas	22

2006/C 036/5	Case C-429/05: Reference for a preliminary ruling from the tribunal d'instance de Saintes by judgment of that court of 16 November 2005 in Max Rampion and Marie-Jeanne Rampion (née Godard) v Franfinance SA and K par K SAS	22

2006/C 036/6	Case C-431/05: Reference for a preliminary ruling from the Supremo Tribunal de Justiça by order of that court of 3 November 2005 in Merck Genéricos-Produtos Farmacêuticos, L.da v Merck & Co. Inc and Merck Sharp & Dohme, L.da	22

2006/C 036/7	Case C-432/05: Reference for a preliminary ruling from the Högsta Domstolen by order of that court of 24 November 2005 in Unibet (London) Ltd, Unibet (International) Ltd v Justitiekanslern	23

2006/C 036/8	Case C-433/05: Reference for a preliminary ruling from the Handens Tingsrätt by order of that court of 21 November 2005 in Åklagaren v Lars Sandström	23

2006/C 036/9	Case C-436/05: Reference for a preliminary ruling from the Hof van Beroep te Antwerpen by order of that court of 29 November 2005 in 1. Lucien de Graaf, and 2. Gudula Daniels v Belgian State	24

2006/C 036/0	Case C-437/05: Reference for a preliminary ruling from the Okresní Soud, Český Krumlov, by order of that court of 28 November 2005 in Jan Vorel v Český Krumlov Hospital	25

2006/C 036/1	Case C-441/05: Reference for a preliminary ruling from the Cour administrative d'appel de Douai by judgment of that court of 1 December 2005 in Roquette Frères v Ministre de l'Agriculture, de l'Alimentation, de la Pêche et de la Ruralité	25

2006/C 036/2	Case C-443/05 P: Appeal brought on 14 December 2005 by Common Market Fertilizers SA (CMF) against the judgment given on 27 September 2005 by the First Chamber (Extended Composition) of the Court of First Instance of the European Communities in Joined Cases T-134/03 and T-135/03 between Common Market Fertilizers SA (CMF) and the Commission of the European Communities	26

2006/C 036/3	Case C-449/05: Action brought on 16 December 2005 by the Commission of the European Communities against the Italian Republic	26

2006/C 036/4	Removal from the register of Case C-541/03	27

2006/C 036/5	Removal from the register of Case C-67/04	27

2006/C 036/6	Removal from the register of Case C-147/05	27

2006/C 036/7	Removal from the register of Case C-153/05	27

2006/C 036/8	Removal from the register of Case C-204/05	27

	COURT OF FIRST INSTANCE
2006/C 036/9	Case T-33/02: Judgment of the Court of First Instance of 29 November 2005 — Britannia Alloys & Chemicals Ltd v Commission (Competition — Article 81 EC — Cartel — Zinc phosphate market — Fine — Article 15(2) of Regulation No 17 — Relevant turnover — Action for annulment)	28

2006/C 036/0	Case T-48/02: Judgment of the Court of First Instance of 6 December 2005 — Brouwerij Haacht v Commission (Competition — Cartels — Fines — Guidelines on the method of setting fines — Effective capacity of the offender to cause significant damage to other operators — Attenuating circumstances — Leniency Notice)	28

2006/C 036/1	Case T-52/02: Judgment of the Court of First Instance of 29 November 2005 — SNCZ v Commission (Competition — Article 81 EC — Cartel — Zinc phosphate market — Fine — Article 15(2) of Regulation No 17 — Principles of proportionality and equal treatment — Action for annulment)	29

2006/C 036/2	Case T-62/02: Judgment of the Court of First Instance of 29 November 2005 — Union Pigments v Commission (Competition — Article 81 EC — Cartel — Zinc phosphate market — Fine — Article 15(2) of Regulation No 17 — Gravity and duration of the infringement — Principles of proportionality and equal treatment — Action for annulment)	29

2006/C 036/3	Case T-64/02: Judgment of the Court of First Instance of 29 November 2005 — Heubach v Commission (Competition — Article 81 EC — Cartel — Zinc phosphate market — Fine — Guidelines on the method of setting fines — Action for annulment — Objection of illegality — Article 15(2) of Regulation No 17 — Gravity of the infringement — Principles of proportionality and equal treatment — Statement of reasons)	29

2006/C 036/4	Case T-361/03: Judgment of the Court of First Instance of 30 November 2005 — Vanlangendonck v Commission (Officials — Open competition — Non-inclusion on the reserve list — Infringement of the competition notice — Equality of treatment)	30

2006/C 036/5	Case T-12/04: Judgment of the Court of First Instance of 30 November 2005 — Almdudler-Limonade v OHIM (Community trade mark — Three-dimensional mark — Shape of a lemonade bottle — Refusal to register — Article 7(1)(b) of Regulation (EC) No 40/94)	30

2006/C 036/6	Case T-343/03: Order of the Court of First Instance of 16 November 2005 — Deutsche Post and Securicor Omega Express v Commission (State aid — Article 88(3) EC — Action for annulment — Admissibility — Complaint — Rejection — Lack of subject matter)	31

2006/C 036/7	Case T-426/04: Order of the Court of First Instance of 21 November 2004 — Tramarin v Commission (Action for annulment — Admissibility — State aid — Commission request to amend a notified aid scheme — Actionable measure — Measure having legal effect — Time-limit — Point from which time starts to run — Summary publication in the Official Journal — Internet site)	31

2006/C 036/8	Case T-507/04: Order of the Court of First Instance of 23 November 2005 — Ruiz Bravo-Villasante v Commission (Officials — Action for annulment — Time-limit — Inadmissibility)	32

2006/C 036/9	Case T-411/05: Action brought on 18 November 2005 — Gerolf Annemans v Commission of the European Communities	32

2006/C 036/0	Case T-414/05: Action brought on 22 November 2005 — NHL Enterprises/OHIM	33

2006/C 036/1	Case T-420/05: Action brought on 25 November 2005 — Vischim v Commission	33

2006/C 036/2	Case T-432/05: Action brought on 8 December 2005 — EMC Development v Commission	34

2006/C 036/3	Case T-433/05: Action brought on 18 November 2005 — Sanchez Ferriz v Commission	35

2006/C 036/4	Case T-162/05: Order of the Court of First Instance of 17 November 2005 — Grijseels and Lopez Garcia v European Economic and Social Committee	35

	III Notices
2006/C 036/5	Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 22, 28.1.2006	36