25.3.2006

Official Journal of the European Union

C 74/1

JUDGMENT OF THE COURT

(Third Chamber)

of 12 January 2006

in Joined Cases C-354/03, C-355/03 and C-484/03: References for a preliminary ruling from the High Court of Justice of England and Wales, Chancery Division (United Kingdom) in Optigen Ltd, Fulcrum Electronics Ltd and Bond House Systems Ltd v Commissioners of Customs & Excise (1)

(Sixth VAT Directive - Article 2(1), Article 4(1) and (2) and Article 5(1) - Deduction of input tax - Economic activity - Taxable person acting as such - Supply of goods - Transaction forming part of a chain of supply involving a defaulting trader or a trader using an unauthorised VAT number - Carousel fraud)

(2006/C 74/01)

Language of the cases: English

In Joined Cases C-354/03, C-355/03 and C-484/03: references for a preliminary ruling under Article 234 EC from the High Court of Justice of England and Wales, Chancery Division (United Kingdom), made by decisions of 28 July 2003 (C-354/03 and C-355/03) and 27 October 2003 (C-484/03), received at the Court on 18 August 2003 and 19 November 2003 respectively, in the proceedings between Optigen Ltd (C-354/03), Fulcrum Electronics Ltd (C-355/03), Bond House Systems Ltd (C-484/03) and Commissioners of Customs & Excise — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J. Malenovský, J.-P. Puissochet, S. von Bahr (Rapporteur) and U. Lõhmus, Judges; M. Poiares Maduro, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, gave a judgment on 12 January 2006, in which it rules:

Transactions such as those at issue in the main proceedings, which are not themselves vitiated by value added tax fraud, constitute supplies of goods or services effected by a taxable person acting as such and an economic activity within the meaning of Articles 2(1), 4 and 5(1) 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, where they fulfil the objective criteria on which the definitions of those terms are based, regardless of the intention of a trader other than the taxable person concerned involved in the same chain of supply and/or the possible fraudulent nature of another transaction in the chain, prior or subsequent to the transaction carried out by that taxable person, of which that taxable person had no knowledge and no means of knowledge. The right to deduct input value added tax of a taxable person who carries out such transactions cannot be affected by the fact that in the chain of supply of which those transactions form part another prior or subsequent transaction is vitiated by value added tax fraud, without that taxable person knowing or having any means of knowing.

(1) OJ C 251 of 18.10.2003.

OJ C 35 of 07.02.2004.

25.3.2006

Official Journal of the European Union

C 74/1

JUDGMENT OF THE COURT

(Second Chamber)

of 19 January 2006

in Case C-547/03 P Asian Institute of Technology (AIT) v Commission of the European Communities (1)

(Appeal - Asia-Invest Programme - Public call for proposals - Contract - Article 111 of the Rules of Procedure of the Court of First Instance - Manifest inadmissibility - No legal interest in bringing proceedings - Article 64 of the Rules of Procedure of the Court of First Instance - Measures of organisation of procedure - Request for production of documents - Parties requested to make written submissions on certain aspects of the proceedings)

(2006/C 74/02)

Language of the case: French

In Case C-547/03 P: appeal under Article 56 of the Statute of the Court of Justice lodged on 22 December 2003, by Asian Institute of Technology (AIT), established in Pathumthani (Thailand) (lawyer: H. Teissier du Cros), the other party to the proceedings being Commission of the European Communities (represented by P.J. Kuijper and B. Schöfer, Agents) — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, J. Makarczyk, R. Silva de Lapuerta, P. Kūris and G. Arestis (Rapporteur), Judges; C. Stix-Hackl, Advocate General; K. Sztranc, Administrator, gave a judgment on 19 January 2006, in which it:

1.	Dismisses the appeal;

2.	Orders the Asian Institute of Technology (AIT) to pay the costs.

(1) OJ C 47 of 21. 2. 2004.

25.3.2006

Official Journal of the European Union

C 74/2

Reference for a preliminary ruling from the Hoge Raad Der Nederlanden by order of that court of 2 December 2005 in Stichting Regionaal Opleidingen Centrum Noord-Kennemerland/West-Friesland (Horizon College) v Staatssecretaris van Financiën

(Case C-434/05)

(2006/C 74/03)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the Hoge Raad Der Nederlanden (Supreme Court of the Netherlands) of 2 December 2005, received at the Court Registry on 5 December 2005, for a preliminary ruling in the proceedings between Stichting Regionaal Opleidingen Centrum Noord-Kennemerland/West-Friesland (Horizon College) and Staatssecretaris van Financiën on the following questions:

Is Article 13 A(1)(i) of the Sixth Directive (1) to be interpreted as meaning that the provision of education includes the making available, for consideration, of a teacher to an educational institution in order that he may temporarily provide teaching services there within the area of responsibility of that educational institution?

2.	If the answer to that question is in the negative, can the concept of ‘services closely related to education’ be interpreted as including the service described in Question 1 above?

3.	Are the answers to the above questions affected by the fact that the body which makes the teacher available is itself also an educational institution?

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

25.3.2006

Official Journal of the European Union

C 74/3

Reference for a preliminary ruling from the Burgerlijke Rechtbank van Eerste Aanleg, Hasselt, by order of that court of 21 December 2005 in M.C.J.A. Geurts and D.H.M. Vogten v The Belgian State, Federale Overheidsdienst Financiën

(Case C-464/05)

(2006/C 74/06)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the Burgerlijke Rechtbank van Eerste Aanleg (Civil Court of First Instance), Hasselt (Belgium) of 21 December 2005, received at the Court Registry on 27 December 2005, for a preliminary ruling in the proceedings between M.C.J.A. Geurts and D.H.M. Vogten and The Belgian State, Federale Overheidsdienst Financiën (Federal Finance Authority) on the following question:

Must Community law, and in particular Articles 43 EC and 56 EC, be interpreted as meaning that a restriction arising from a provision in the legislation of a region of a Member State concerning inheritance, in this case Article 60a of the Belgian Wetboek van Successierechten as applicable to an estate arising in the Flemish Region, which exempts the shares in a family company or the claims of the legal successor of the deceased, his heir, against such a company from inheritance tax if the company has employed at least five workers in the three years prior to the death of the deceased, but restricts that exemption to cases in which at least five workers have been employed in a particular region of that Member State (in casu, the Flemish Region), is incompatible with those articles?

25.3.2006

Official Journal of the European Union

C 74/4

Reference for a preliminary ruling from the Finanzgericht Düsseldorf by order of that court of 2 January 2006 in Jülich AG v Hauptzollamt Aachen

(Case C-5/06)

(2006/C 74/10)

Language of the case: German

Reference has been made to the Court of Justice of the European Communities by order of the Finanzgericht (Finance Court) Düsseldorf (Germany) of 2 January 2006, received at the Court Registry on 9 January 2006, for a preliminary ruling in the proceedings between Jülich AG and Hauptzollamt Aachen on the following questions:

Is Article 15 of Council Regulation (EC) No 1260/2001 (1) of 19 June 2001 on the common organisation of the markets in the sugar sector to be interpreted as meaning that, when determining the exportable surplus, account should be taken only of those export quantities of sugar, isoglucose and inulin syrup in respect of which export refunds have actually been paid?

If Question 1 is to be answered in the affirmative: Is Article 6(4) of Commission Regulation (EC) No 314/2002 (2) of 20 February 2002 laying down detailed rules for the application of the quota system in the sugar sector, as amended by Commission Regulation (EC) No 1140/2003 (3) of 27 June 2003, invalid?

If Question 1 is to be answered in the negative: Is Article 15 of Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector to be interpreted as meaning that, when determining both the exportable surplus and the average loss per tonne of sugar, all exports are to be taken into account, even where no export refunds were paid in respect of a portion of those exports in the relevant marketing year?

4.	If Questions 1, 2 or 3 are to be answered in the affirmative: Is Commission Regulation (EC) No 1775/2004 (4) of 14 October 2004 setting the production levies in the sugar sector for the 2003/04 marketing year invalid?

(1) OJ L 178, p. 1.

(2) OJ L 50, p 40.

(3) OJ L 160, p. 33.

(4) OJ L 316, p 64.

25.3.2006

Official Journal of the European Union

C 74/5

Appeal brought on 11 January 2006 by the Regione Siciliana against the judgment of the Court of First Instance of the European Communities (First Chamber, Extended Composition) of 18 October 2005 in Case T-60/03 Regione Siciliana v Commission of the European Communities

(Case C-15/06 P)

(2006/C 74/11)

Language of the case: Italian

An appeal against the judgment of the Court of First Instance of the European Communities (First Chamber, Extended Composition) of 18 October 2005 in Case T-60/03 Regione Siciliana v Commission of the European Communities was brought before the Court of Justice of the European Communities on 11 January 2006 by the Regione Siciliana, represented by I.M. Braguglia, acting as Agent, and G. Aiello, avvocato dello Stato

The appellant claims that the Court should:

set aside the judgment of the Court of First Instance and consequently annul the Commission Decision C (2002) 4905 of 11 December 2002 relating to the cancellation of the aid granted by the European Regional Development Fund, ERDF, as infrastructure investment, for a sum no less than ECU 15 million, in Italy (region: Sicily), and to the recovery of the advance on that assistance made by the Commission, and order the release of the balance;

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

Pleas in law and main arguments

The appellant claims that the contested judgment is flawed by reason of:

1.	infringement and erroneous application of Articles 18(1) and 32(1) of Council Regulation (EEC) No 1787/84 (1) of 19 June 1984 on the European Regional Development Fund, as amended by Council Regulation (EEC) No 3641/85 (2) of 20 December 1985;

infringement and erroneous application of Article 24 of Council Regulation (EEC) No 4253/88 of 19 December 1988 (3) laying down provisions for implementing Regulation (EEC) No 2052/88 (4) as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments, as amended by Council Regulation (EEC) No 2082/93 (5) of 20 July 1984;

3.	inaccurate statement of reasons on a key issue of the dispute.

(1) No longer in force.

(2) No longer in force.

(3) No longer in force.

(4) No longer in force.

(5) OJ L 193 of 31.7.1993, p. 20.

25.3.2006

Official Journal of the European Union

C 74/6

References for a preliminary ruling from the Tribunal de Grande Instance de Nanterre by judgments of that court of 5 January 2006 in

Société Saint Louis Sucre SNC v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects

Societe des Sucreries du Marquenterre SA v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects

SA des Sucreries de Fontaine Le Dun, Bolbec, Auffay (SAFBA) v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects

Lesaffre Frères SA v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects

Sucreries, Distilleries des Hauts de France v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects

Sucreries & Distilleries de Souppes — Ouvré Fils SA v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects

Sucreries de Toury et usines annexes SA v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects

Tereos v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects

SAS Sucrerie du Littoral Groupe S.D.H.F v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects

Cristal Union v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects

Sucrerie Bourdon v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects

Sucrerie de Bourgogne SA v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects

SAS Vermendoise Industries v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects

Sucreries et Raffineries d'Erstein SA v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects

(Case C-23/06 - Case C-24/06 - Case C-25/06 - Case C-26/06 - Case C-27/06 - Case C-28/06 - Case C-29/06 - Case C-30/06 - Case C-31/06 - Case C-32/06 - Case C-33/06 - Case C-34/06 - Case C-35/06 - Case C-36/06)

(2006/C 74/13)

Language of the cases: French

References have been made to the Court of Justice of the European Communities by judgments of the Tribunal de Grande Instance de Nanterre delivered on 5 January 2006, received at the Court Registry on 20 January 2006, for a preliminary ruling in the following cases:

—	Société Saint Louis Sucre SNC v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects (Case C-23/06)

—	Société des Sucreries du Marquenterre SA v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects (Case C-24/06)

—	SA des Sucreries de Fontaine Le Dun, Bolbec, Auffay (SAFBA) v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects (Case C-25/06)

—	Lesaffre Frères SA v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects (Case C-26/06)

—	Sucreries, Distilleries des Hauts de France v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects (Case C-27/06)

—	Sucreries & Distilleries de Souppes — Ouvré Fils SA v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects (Case C-28/06)

—	Sucreries de Toury et usines annexes SA v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects (Case C-29/06)

—	Tereos v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects (Case C-30/06)

—	SAS Sucrerie du Littoral Groupe S.D.H.F v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects (Case C-31/06)

—	Cristal Union v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects (Case C-32/06)

—	Sucrerie Bourdon v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects (Case C-33/06)

—	Sucrerie de Bourgogne SA v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects (Case C-34/06)

—	SAS Vermendoise Industries v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects (Case C-35/06)

—	Sucreries et Raffineries d'Erstein SA v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects (Case C-36/06)

The Tribunal de Grande Instance de Nanterre asks the Court of Justice of the European Communities to give a ruling on the following questions:

Is Article 6(4) of Commission Regulation (EC) No 314/2002 (1) and/or Regulations (EC) Nos 1837/2002, (2) 1762/2003 (3) and 1775/2004 (4) adopted to implement it invalid in the light of Article 15 of Council Regulation (EC) No 1260/2001 (5) and in the light of the principle of proportionality, in that, with regard to calculation of the production levy, it does not provide for the exclusion from the ‘exportable surplus’ of the sugar contained in processed products which are exported without export refunds?

If the answer to this question is in the negative:

Are Regulations (EC) Nos 1837/2002, 1762/2003 and 1775/2004 invalid in the light of Commission Regulation (EC) No 314/2002 and Article 15 of Council Regulation (EC) No 1260/2001 and of the principles of equality and proportionality, in that they lay down a production levy for sugar which is calculated on the basis of the 'average loss' per tonne exported, which does not take account of the quantities exported without refund, although these quantities exported without refund, although these quantities are included in the total used to evaluate the total loss to be financed?

(1) Commission Regulation (EC) No 314/2002 of 20 February 2002 laying down detailed rules for the application of the quota system in the sugar sector (OJ L 50, p. 40)

(2) Commission Regulation (EC) No 1837/2002 of 15 October 2002 fixing the production levies and the coefficient for the additional levy in the sugar sector for the marketing year 2001/02 (OJ L 278, p. 13)

(3) Commission Regulation (EC) No 1762/2003 of 7 October 2003 fixing the production levies in the sugar sector for the 2002/03 marketing year (OJ L 254, p. 4)

(4) Commission Regulation (EC) No 1775/2004 of 14 October 2004 setting the production levies in the sugar sector for the 2003/04 marketing year (OJ L 316, p. 64)

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

25.3.2006

Official Journal of the European Union

C 74/7

Action brought on 24 January 2006 by the Commission of the European Communities against the Portuguese Republic

(Case C-38/06)

(2006/C 74/14)

Language of the case: Portuguese

An action against the Portuguese Republic was brought before the Court of Justice of the European Communities on 24 January 2006 by the Commission of the European Communities, represented by Günter Wilms and Margarida Afonso, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

Declare that, by refusing to establish and to make available to the Commission the own resources due as a result of imports of equipment and goods for specifically military use in the period from 1 January 1998 to 31 December 2002 inclusive, and by refusing to pay the related default interest, the Portuguese Republic has failed to fulfil its obligations under Articles 2, 9, 10 and 11 of Regulation No 1552/89, (1) in so far as the period 1 January 1998 to 30 May 2000 inclusive is concerned and, after the latter date, under the corresponding provisions of Regulation No 1150/2000; (2)

2.	Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The Commission believes that Article 296 EC does not allow a Member State to exempt from customs duties imports of military matériel, in that the levying of those duties cannot be considered to threaten that Member State's essential security interests.

In the absence of concrete argument that might furnish specific justification of the need to derogate from the customs rules in order to protect the essential interests of the security of the Portuguese Republic, the Commission takes the view that the Portuguese authorities have failed to fulfil their obligations under Article 26 EC, Article 20 of the Community Customs Code (3) and, in consequence, the Common Customs Tariff.

It is unacceptable that a Member State should avoid its obligations with regard to the joint and several co-financing of the Community's budget by pleading the need to fund its military expenditure at lower cost.

Where the rules laid down are not complied with, all the Member States must bear the respective financial consequences, for such a case gives rise to the application of the mechanism which, by means of ‘GNP’ resources, offsets the shortfall in traditional own resources and VAT. Observance of the principle of good financial management, and also of the fundamental concepts of fairness and responsibility, demands that the Member States that caused the own resources made available to fall short of the amount due should alone bear the consequences for the Community budget resulting therefrom and, therefore, pay the sums not collected by reason of their respective failures to fulfil obligations.

The failure at issue continued until 31 December 2002, seeing that Regulation No 150/2003 (4) has been applicable since 1 January 2003. It is only from that date that that regulation has made it possible to suspend, on certain conditions, customs duties on the import of certain weapons and military equipment.

The Portuguese authorities ought to have credited the customs duties in the accounting ledgers in accordance with the rules fixed by the Community Customs Code for the imports at issue, and also to have established and made available to the Commission the own resources so resulting pursuant to Articles 2, 9, 10 and 11 of Regulation No 1552/89 and the corresponding provisions of Regulation No 1150/2000. An infringement of the customs legislation having been committed, the Community must be credited with a sum equivalent to the own resources lacking. To that sum must be added the default interest provided for by Article 11 of Regulation No 1150/2000.

(1) Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom on the system of the Communities' own resources (OJ 1989 L 155, p. 1).

(2) Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities' own resources (OJ 2000 L 130. p. 1).

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

(4) Council Regulation (EC) No 150/2003 of 21 January 2003 suspending import duties on certain weapons and military equipment (OJ 2003 L 25, p. 1).

25.3.2006

Official Journal of the European Union

C 74/8

Action brought on 27 January 2006 by the Commission of the European Communities against the Kingdom of Belgium

(Case C-42/06)

(2006/C 74/15)

Language of the case: French

An action against the Kingdom of Belgium was brought before the Court of Justice of the European Communities on 27 January 2006 by the Commission of the European Communities, represented by B. Stromsky, acting as Agent, with an address for service in Luxembourg.

The applicant claims that the Court should:

—

declare that, by imposing, in the Brussels-Capital Region, a system of approval of natural and legal persons manufacturing and/or distributing refuse collection bags, the detailed rules of which infringe the principle of proportionality, the Kingdom of Belgium has failed to fulfil its obligations under Articles 28 and 30 of the EC Treaty;

—	order the Kingdom of Belgium to pay the costs.

Pleas in law and main arguments

No Community harmonisation governs the approval of natural and legal persons manufacturing and/or distributing refuse collection bags.

In those circumstances, national legislation requiring the approval of natural and legal persons manufacturing and/or distributing refuse collection bags must be evaluated in the light of Articles 28 and 30 of the Treaty establishing the European Community.

According to the case-law of the Court of Justice, a prior authorisation procedure such as that laid down by Article 10a of the Regulations of the Brussels-Capital Region of 15 July 1993 on refuse collection, can restrict the free movement of goods.

To be justified with regard to the fundamental freedom of the free movement of goods, such a prior authorisation procedure must pursue a public interest purpose recognised by Community law and comply with the principle of proportionality, that is to say be appropriate to ensure the attainment of the objective pursued and not go beyond what is necessary for its attainment.

The Commission can conceive that an approval procedure might be such as to pursue the public interest purposes of protection of workers' health and of the environment.

However, the Commission submits that, in this case, the detailed rules of the approval procedure under Article 10a of the Regulations do not comply with the principle of proportionality because it is not easily accessible.

25.3.2006

Official Journal of the European Union

C 74/9

Action brought on 30 January 2006 by the Commission of the European Communities against the Czech Republic

(Case C-46/06)

(2006/C 74/16)

Language of the case: Czech

An action against the Czech Republic was brought before the Court of Justice of the European Communities on 30 January 2006 by the Commission of the European Communities, represented by L. Jelinek and W. Wils, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

declare that, by not adopting all the laws, regulations and administrative provisions necessary to comply with Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, (1) or in any event by not informing the Commission thereof, the Czech Republic has failed to fulfil its obligations under the following provisions of that directive: Article 3(3); Article 6(1) as regards the wording ‘any effective technological measures, which the person concerned carries out in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective’; Article 6(3); the first, fourth and fifth subparagraphs of Article 6(4); the second subparagraph of Article 7(1); Article 7(2); Article 8(2) as regards the wording ‘as well as of devices, products or components referred to in Article 6(2)’; Article 8(3); Article 10(1); and Article 11(2);

2.	order the Czech Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for implementing the directive in national law expired on 1 May 2004.

(1) OJ L 167 of 22.6.2001, p. 10.

25.3.2006

Official Journal of the European Union

C 74/9

Action brought on 1 February 2006 by the Commission of the European Communities against the Kingdom of Spain

(Case C-52/06)

(2006/C 74/17)

Language of the case: Spanish

An action against the Kingdom of Spain was brought before the Court of Justice of the European Communities on 1 February 2006 by the Commission of the European Communities, represented by F. Simonetti and S. Pardo Quintillán, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/42/EC (1) of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment or, in any event, by failing to communicate those provisions to the Commission, the Kingdom of Spain has failed to fulfil its obligations under that directive;

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

Pleas in law and main arguments

The period prescribed for transposing Directive 2001/42 into national law expired on 21 July 2004.

(1) OJ L 197 of 21.7.2001, p. 30.

25.3.2006

Official Journal of the European Union

C 74/10

Action brought on 1 February 2006 by the Commission of the European Communities against the Kingdom of Spain

(Case C-53/06)

(2006/C 74/18)

Language of the case: Spanish

An action against the Kingdom of Spain was brought before the Court of Justice of the European Communities on 1 February 2006 by the Commission of the European Communities, represented by U. Wölker and S. Pardo Quintillán, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2003/4/EC (1) of the European Parliament and of the Council of 28 January 2003 on pub1ic access to environmental information and repealing Council Directive 90/313/EEC (2) or, in any event, by failing to communicate those provisions to the Commission, the Kingdom of Spain has failed to fulfil its obligations under that directive;

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

Pleas in law and main arguments

The period prescribed for transposing Directive 2003/4 into national law expired on 14 February 2005.

(1) OJ L 41 of 14.2.2003, p. 26.

(2) OJ L 158 of 23.6.1990, p. 56.

25.3.2006

Official Journal of the European Union

C 74/10

Action brought on 1 February 2006 by the Commission of the European Communities against the Kingdom of Belgium

(Case C-54/06)

(2006/C 74/19)

Language of the case: French

An action against the Kingdom of Belgium was brought before the Court of Justice of the European Communities on 1 February 2006 by the Commission of the European Communities, represented by J. Hottiaux and F. Simonetti, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (1), the Kingdom of Belgium has failed to fulfil its obligations under that directive;

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

Pleas in law and main arguments

The time for transposing the directive expired on 21 July 2004. Belgium still has not adopted all the measures which come within the powers of the Flemish Region and of the Federal Government, or, in any event, has not informed the Commission of them.

(1) OJ L 197 of 21.07.2001, p. 30.

25.3.2006

Official Journal of the European Union

C 74/11

Appeal brought on 2 February 2006 by Elisabetta Righini against the judgment of the Court of First Instance (Fifth Chamber) of 15 November 2005 in Case T-145/04 Elisabetta Righini v Commission of the European Communities

(Case C-57/06 P)

(2006/C 74/20)

Language of the case: French

An appeal against the judgment of the Court of First Instance (Fifth Chamber) of 15 November 2005 in Case T-145/04 Elisabetta Righini v Commission of the European Communities was brought before the Court of Justice of the European Communities on 2 February 2006 by Elisabetta Righini, represented by Eric Boigelot, avocat.

The applicant claims that the Court should:

(1)	declare the appeal admissible and well founded and, consequently

(2)	annul the judgment of the Court of First Instance of the European Communities in Case T-145/04 Righini v Commission delivered on 15 November 2005,

(3)

itself give judgment in the case and, upholding the appellant's initial application in Case T-145/04:

—	annul the Commission's decisions to classify the appellant on her entry into service in Grade A*8/3 (ex A7/3), whether as a member of the temporary staff or as a probationary official, which were notified to her on 27 May 2003 and 30 June 2003;

—	annul the express decision of 21 January 2004, notified on 23 January 2004, rejecting the appellant's complaint registered on 14 August 2003 under the reference R/485/03;

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

Pleas in law and main arguments

The pleas in law of the appeal, pursuant to Article 58 of the Statute of the Court of Justice, allege a breach of Community law and procedural irregularities before the Court of First Instance infringing the appellant's interests.

The appellant challenges the judgment under appeal in so far as it rejects the plea alleging infringement of Article 31(2) of the Staff Regulations, the 1983 decision, the administrative guide and a manifest error of assessment and is, in that regard, flawed by errors of law, by an erroneous and inconsistent statement of reasons and a distortion of the evidence in the file.

25.3.2006

Official Journal of the European Union

C 74/11

Action brought on 6 February 2006 by the Commission of the European Communities against the Hellenic Republic

(Case C-68/06)

(2006/C 74/21)

Language of the case: Greek

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 6 February 2006 by the Commission of the European Communities, represented by Minas Konstantinidis, of its Legal Service, and Florence Simonetti, a national expert, 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 2001/42/EC (1) of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, the Hellenic Republic has failed to fulfil its obligations under that directive;

2.	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 21 July 2004.

(1) OJ L 197, 21.7.2001, p. 30.

25.3.2006

Official Journal of the European Union

C 74/12

Action brought on 7 February 2006 by the Commission of the European Communities against the Italian Republic

(Case C-71/06)

(2006/C 74/23)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 7 February 2006 by the Commission of the European Communities, represented by L. Visaggio, acting as Agent.

The applicant claims that the Court should:

declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/85/EC (1) of 29 September 2003 on Community measures for the control of foot-and-mouth disease repealing Directive 85/511/EEC (2) and Decisions 89/531/EEC (3) and 91/665/EEC (4) and amending Directive 92/46/EEC (5) or rather by not notifying those provisions to the Commission, the Italian Republic has failed to fulfil its obligations under Article 93(1) of Directive 2003/85/EC;

2.	order the Italian Republic to pay the costs.

Pleas in law and main arguments

The time-limit for the implementation of the directive expired on 30 June 2004.

(1) OJ L 306 of 22.11.2003, p. 1

(2) OJ L 315 of 26.11.1985, p. 11

(3) OJ L 279 of 28.9.1989, p. 32

(4) OJ L 368 of 31.12.1991, p. 19

(5) OJ L 268 of 14.9.1992, p. 1

25.3.2006

Official Journal of the European Union

C 74/13

Action brought on 9 February 2006 by the Commission of the European Communities against the Grand-Duchy of Luxembourg

(Case C-77/06)

(2006/C 74/25)

Language of the case: French

An action against the Grand-Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 9 February 2006 by the Commission of the European Communities, represented by J. Hottiaux and F. Simonetti, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (1) and, in any event, by not communicating those provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

2.	order the Grand-Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The time-limit for the implementation of Directive 2001/42/EC expired on 21 July 2004.

(1) OJ L 197 of 21.7.2001, p. 30.

25.3.2006

Official Journal of the European Union

C 74/13

Action brought on 10 February 2006 by the Commission of the European Communities against the Hellenic Republic

(Case C-85/06)

(2006/C 74/27)

Language of the case: Greek

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 10 February 2006 by the Commission of the European Communities, represented by Ulrich Wölker, Legal Adviser, and Minas Konstantinidis, of its Legal Service, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2003/4/EC (1)of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC, and in any event by failing to inform the Commission thereof, the Hellenic Republic has failed to fulfil its obligations under that directive;

2.	order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing the directive into national law expired on 14 February 2005.

(1) OJ L 41 of 14.2.2003, p. 26.

25.3.2006

Official Journal of the European Union

C 74/15

Judgment of the Court of First Instance of 26 January 2006 — Stadtwerke Schwäbisch Hall and Others v Commission

(Case T-92/02) (1)

(State aid - tax exemption scheme applied to the reserves established by nuclear installations established in Germany for the purpose of eliminating their radioactive waste and the definitive - Decision finding that there is no Sate aid at the end of the preliminary examination procedure - Action for annulment)

(2006/C 74/29)

Language of the case: German

Parties

Applicants: Stadtwerke Schwäbisch Hall GmbH (Schwäbisch Hall, Germany), Stadtwerke Tübingen GmbH (Tübingen, Germany) and Stadtwerke Uelzen GmbH (Uelzen, Germany) (represented by: D. Fouquet, lawyer)

Defendants: Commission of the European Communities (represented by: V. Kreuschitz, Agent)

Interveners in support of the defendant: E.ON Kernkraft GmbH (Hanover, Germany), RWE Power AG (Essen, Germany), EnBW Energie Baden-Württemberg AG (Karlsruhe, Germany) and Hamburgische Electricitäts-Werke AG (Hamburg, Germany) (represented by: U. Karpenstein and D. Sellner, lawyers)

Application for

Annulment of Commission Decision C (2001) 3967 final of 11 December 2001

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the applicants, in addition to bearing their own costs, to pay those incurred by the Commission and by the interveners.

(1) OJ C 144 of 15.6.2002.

25.3.2006

Official Journal of the European Union

C 74/15

Judgment of the Court of First Instance of 18 January 2006 — Regione Marche v Commission

(Case T-107/03) (1)

(Integrated Mediterranean Programme (IMP) for the Marche Region (Italy) - Conclusion of financial assistance - Ineligible expenditure - Action for annulment - Absence of legal basis - Legitimate expectation - Failure to state grounds )

(2006/C 74/30)

Language of the case: Italian

Parties

Applicant: Regione Marche (represented by: A. Pappalardo, M. Merola and D. Domenicucci, lawyers)

Defendant: Commission of the European Communities (represented by: E. de March and L. Flynn, Agents, and A. Dal Ferro, lawyer)

Application for

Annulment of the Commission decision of 18 December 2002 contained in a letter to the Italian Government by which the Commission announced that it was concluding Community financial assistance granted under the Integrated Mediterranean Programme (IMP) for the Marche Region (Italy)

Operative part of the judgment

The Court:

1.	Dismisses the application.

2.	Orders the applicant, in addition to bearing its own costs, to pay those incurred by the Commission.

(1) OJ C 124, 24.5.2003.

25.3.2006

Official Journal of the European Union

C 74/16

Judgment of the Court of First Instance of 12 January 2006 — Devinlec v OHIM

(Case T-147/03) (1)

(Community trade mark - Figurative mark containing the verbal element ‘quantum’ - Opposition of the proprietor of the national figurative mark Quantième - Relative ground of refusal - Likelihood of confusion - Article 8(1)(b), Article 15(2) and Article 43(3) of Regulation (EC) No 40/94)

(2006/C 74/31)

Language of the case: English

Parties:

Applicant: Devinlec Développement Innovation Leclerc SA (Toulouse, France) (represented by: J.-P. Simon, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Novais Gonçalves and A. Folliard-Monguiral, Agents)

Other party to the proceedings before the Board of Appeal of OHIM, intervening before the Court of First Instance: T.I.M.E. ART Uluslararasi Saat Ticareti ve diş Ticaret AŞ (Istanbul, Turkey) (represented by: F. Jacobacci, lawyer)

Action

brought against against the decision of the Third Board of Appeal of OHIM of 30 January 2003 (Case R 109/2002-3) relating to opposition proceedings between Devinlec Développement Innovation Leclerc SA and T.I.M.E. Art Uluslararasi Saat Ticareti ve diş Ticaret AŞ

Operative part of the judgment

The Court:

1.	Annuls the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 30 January 2003 (Case R 109/2002-3).

2.	Orders the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay its own costs and those incurred by the applicant in the proceedings before the Court.

3.	Orders the intervener to pay its own costs and those incurred by the applicant in the proceedings before the Board of Appeal.

(1) OJ C 171 of 19.7.2003.

25.3.2006

Official Journal of the European Union

C 74/16

Judgment of the Court of First Instance of 25 January 2006 — Le Canne v Commission

(Case T-276/03) (1)

(Judgment annulling a Commission decision reducing the amount of Community financial assistance - Procedures for compliance - Action for failure to act - No need to adjudicate - Action for compensation)

(2006/C 74/32)

Language of the case: Italian

Parties

Applicant: Azienda agricola ‘Le Canne’ (Porto Viro, Italy) (represented by: F. Mazzonetto and G. Carraro, lawyers)

Defendant: Commission of the European Communities (represented by: L. Visaggio and C. Cattabriga, Agents, assisted by A. Dal Ferro, lawyer)

Application for

First, a declaration that the Commission unlawfully failed to adopt the measures to comply with the judgment of the Court of First Instance of 5 March 2002 in Case T-241/00 Le Canne v Commission [2002] ECR II-1251 and, second, compensation for the loss alleged to have resulted from that failure

Operative part of the judgment

The Court:

1.	Declares that there is no need to adjudicate on the claim alleging failure to act;

2.	Dismisses the claim for compensation;

3.	Orders the parties to bear their own costs.

(1) OJ C 239 of 4.10.2003.

25.3.2006

Official Journal of the European Union

C 74/17

Judgment of the Court of First Instance of 26 January 2006 — Volkswagen v OHIM

(Case T-317/03) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark Variant - Earlier national word mark DERBIVARIANT - Refusal of registration by the Board of Appeal - Likelihood of confusion - Articles 74(1) and 8(1)(b) of Regulation (EC) No 40/94)

(2006/C 74/33)

Language of the case: German

Parties:

Applicant: Volkswagen AG (Wolfsburg, Germany) (represented by: S. Risthaus, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Nacional Motor, SA (Martorelles, Spain)

Action

brought against the decision of the Fourth Board of Appeal of OHIM of 17 June 2003 (Case R 610/2001-4) relating to opposition proceedings between Nacional Motor, SA and Volkswagen AG.

Operative part of the judgment

The Court:

Sets aside paragraph 2 of the operative part of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM) of 17 June 2003 in so far as it dismisses the application for registration as a Community trade mark of the word sign Variant for goods and services other than those in Classes 7, 12 and 37.

2.	Dismisses the remainder of the action.

3	Orders the applicant to pay the costs.

(1) OJ C 304 of 13.12.2003.

25.3.2006

Official Journal of the European Union

C 74/17

Judgment of the Court of First Instance of 26 January 2006 — Medici Grimm v Council

(Case T-364/03) (1)

(Dumping - Imports of leather handbags originating in the People's Republic of China - Amendment of a regulation imposing a definitive anti-dumping duty - No retroactive effect - Annulment by the Court of First Instance - Action for damages - Sufficiently serious breach)

(2006/C 74/34)

Language of the case: English

Parties

Applicant: Medici Grimm KG (Rodgau Hainhausen, Germany) (represented by: R. MacLean, Solicitor, and E. Gybels, lawyer)

Defendant: Council of the European Union (represented by: M. Bishop, Agent, assisted by G. Berrisch, lawyer)

Intervener in support of the defendant: Commission of the European Communities (represented by: N. Khan and T. Scharf, Agents)

Application for

compensation under Article 235 EC and the second paragraph of Article 288 EC for damage allegedly suffered by the applicant as a result of the absence of retroactive effect of Council Regulation (EC) No 2380/98 of 3 November 1998, amending Regulation (EC) No 1567/97 imposing a definitive anti-dumping duty on imports of leather handbags originating in the People's Republic of China (OJ 1997 L 296, p. 1), partially annulled by the judgment in Case T-7/99 Medici Grimm v Council [2000] ECR II-2671

Operative part of the judgment

1.	The action is dismissed;

2.	The applicant shall bear, in addition to its own costs, the costs incurred by the Council;

3.	The Commission shall bear its own costs.

(1) OJ C 21, 24.1.2004.

25.3.2006

Official Journal of the European Union

C 74/18

Judgment of the Court of First Instance of 17 January 2006 — Henkel v OHIM

(Case T-398/04) (1)

(Community trade mark - Figurative mark - Red and white rectangular tablet with an oval blue centre - Absolute ground for refusal - Article 7(1)(b) of Regulation (EC) No 40/94 - Absence of distinctive character)

(2006/C 74/36)

Language of the case: German

Parties:

Applicant: Henkel KGaA (Dusseldorf, Germany) (represented by: C. Osterrieth, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: initially D. Schennen, subsequently D. Schennen and G. Schneider, Agents)

Action

brought against the decision of the Second Board of Appeal of OHIM of 4 August 2004 (Case R 771/1999-2), in relation to the registration of a figurative mark consisting of the representation of a rectangular tablet

Operative part of the judgment

The Court:

1.	Dismisses the application.

2.	Orders the applicant to pay the costs.

(1) OJ C 19, 22.1.2005.

25.3.2006

Official Journal of the European Union

C 74/18

Order of the Court of First Instance of 14 December 2005 — Arizona Chemical BV and Others v Commission

(Case T-369/03) (1)

(Directive 67/548/EEC - Refusal to declassify rosin as a dangerous substance - Action for annulment - Act not open to challenge - Action for damages - Limitation - Plea of illegality - Inadmissibility)

(2006/C 74/37)

Language of the case: English

Parties:

Applicants: Arizona Chemical BV (Huizen, Netherlands), Eastman Belgium BVBA (Kallo, Belgium), Resinall Europe BVBA (Bruges, Belgium), and Cray Valley Iberica, SA (Madrid) (represented by C. Mereu and K. Van Maldegem, lawyers)

Defendant: Commission of the European Communities (represented by X. Lewis and F. Simonetti, Agents)

Interverners in support of the defendant: Republic of Finland (represented by T. Pynnä and A. Guimaraes-Purokoski, Agents)

Application for

first, annulment of an act of the Commission rejecting the applicants' request for the withdrawal of rosin from the list of sensitising substances set out in Annex I to Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ, English Special Edition 1967, p. 234), and, second, for compensation for the damages suffered

Operative part of the Order

1.	The action is dismissed as inadmissible.

2.	The applicants shall bear their own costs and pay those incurred by the defendant.

3.	The intervener shall bear its own costs.

(1) OJ C 7, 10.1.2004.

25.3.2006

Official Journal of the European Union

C 74/19

Order of the Court of First Instance of 13 January 2006 — Dimos Ano Liosion and Others v Commission

(Case T-85/05) (1)

(Inadmissibility - Persons not the addressees of Community measures - Direct concern)

(2006/C 74/38)

Language of the case: Greek

Parties:

Applicants: Dimos Ano Liosion (Greece), Theodora Goula, Argyris Argyropoulos, Ioannis Manis, Eleni Ntalipi, Vasilis Papagrigoriou and Giorgos Fragkalexis (Ano Liossia, Greece) (represented by: G. Kalavros, lawyer)

Defendant: Commission of the European Communities (represented by: D. Triantafyllou and L. Flynn, Agents)

Application for

Annulment of Commission Decision E (2004) 5522 of 21 December 2004 concerning the grant of financial assistance by the Cohesion Fund for the project entitled 'Construction of Phase 1 of the second landfill site for waste in West Attica at ‘Skalistiri’ in the municipality of Fyli'.

Operative part of the Order

1.	The application is dismissed as inadmissible.

2.	The applicants shall bear the costs of the proceedings, including those relating to the interim proceedings.

(1) OJ C 106, 30.4.2005.

25.3.2006

Official Journal of the European Union

C 74/19

Order of the Court of First Instance of 9 January 2006 — Finland v Commission

(Case T-177/05) (1)

(Procedural issues - Objection of inadmissibility - Acts not producing binding legal effects - European Communities' own resources - Infringement proceedings - Interest for delayed entry provided for in Article 11 of Regulation (EC, Euratom) No 1150/2000 - Negotiation of an agreement on conditional payment)

(2006/C 74/39)

Language of the case: Finnish

Parties:

Applicant: Republic of Finland (represented by: T. Pynnä and A. Guimaraes-Purokoski, Agents)

Defendant: Commission of the European Communities (represented by: G. Wilms and P. Aalto, Agents)

Application for

Annulment of the Commission decision (Budget Directorate-General) contained in the letter of 28 February 2005 and in the confirmatory letter of 25 April 2005 whereby the Commission refused to enter into negotiations with the Republic of Finland on the conditional payment of retroactive duties, plus default interest up to the date of payment, which the Commission claimed from the Republic of Finland in the context of infringement proceedings 2003/2180, brought under Article 226 EC.

Operative part of the Order

1.	The action is dismissed as inadmissible;

2.	The Republic of Finland is ordered to pay the costs.

(1) OJ C 153 of 25.6.2005.

25.3.2006

Official Journal of the European Union

C 74/20

Action brought on 2 November 2005 — ARCHI.M.E.D.-E.S v Commission

(Case T-396/05)

(2006/C 74/40)

Language of the case: French

Parties

Applicant: Architecture, Microclimat, Energies Douces — Europe et Sud SARL (ARCHI.M.E.D.-E.S) (Ganges, France) (represented by: P.-P. van Gehuchten, J. Sambon, P. Reyniers, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

—	annul the Commission's set-off decision contained in the letter of 5 October 2005, notified to the applicant on 10 October 2005;

—	annul the recovery decision contained in the letters of 30 August 2005 and the debit note No 3240705638 of 23 August 2005, notified to the applicant on 2 September 2005;

—	order the Commission to pay all the costs.

Pleas in law and main arguments

The applicant is party to Contract BU 209-95 concluded with the Commission in consequence of the invitation to tender made in connection with the specific programme for research and technological development in the field of non-nuclear energy (1) and covering the execution of a project of renovation of a building in Lyon by using solar and bio-climatic architecture methods. In execution of its contractual obligations, the applicant, on 12 December 2001, sent the Commission the final report on the project. The Commission did not accept that report and, on 5 July 2002, sent the applicant a decision to recover certain payments made by refusing to accept certain costs declared by it in that report. Neither exchanges of correspondence between the parties, nor the meetings held nor the intervention of a mediator could bring about an amicable settlement of the dispute.

By registered letter of 30 August 2005, the Commission sent the applicant a final recovery decision preceded by a debit note of 23 August 2005. By another registered letter of 5 October 2005, the Commission also communicated to the applicant a decision imposing a set-off of their reciprocal claims: certain claims of the Commission against the applicant in connection with the contract in question, on the one hand and, on the other hand, certain claims of the applicant against the Commission to which it is entitled in connection with another contract. Those are the decisions challenged.

The applicant challenges the decisions relying on two main pleas in law.

First of all, it claims that, by the contested decisions, the Commission is in breach of the ordinary rules of set-off between reciprocal claims. The applicant maintains that such set-off is not available when the claims are governed by two different legal systems. According to the applicant, its claims against the Commission are based on Community law, while the Commission's claims against the applicant are governed by French law. In addition, the applicant claims that the Commission has no legal basis enabling it to impose the set-off on the applicant, while the claims concerned are as yet uncertain, which is substantiated by numerous challenges on the part of the applicant itself and the process before the mediator which has not yet been completed.

By its second plea in law, the applicant submits that the recovery decision should be annulled for failure to state reasons. It avers that the Commission has never furnished satisfactory explanations, in particular with regard to the arguments raised by the applicant over the manner in which it established the amount of its claim.

(1) Programme put in place by Council Decision 94/806/EC of 23 November 1994 (OJ L 334 of 22 December 1994, p. 87).

25.3.2006

Official Journal of the European Union

C 74/20

Action brought on 3 November 2005 — ARCHI.M.E.D.-E.S v Commission

(Case T-397/05)

(2006/C 74/41)

Language of the case: French

Parties

Applicant: Architecture, Microclimat, Energies Douces — Europe et Sud SARL (ARCHI.M.E.D.-E.S) (Ganges, France) (represented by: P.-P. van Gehuchten, J. Sambon, P. Reyniers, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

—	declare that the Commission could not terminate the contract of 30 August 2005;

—	order the European Commission to pay the sum of EUR 125 906, plus statutory default interest since 12 February 2002;

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

Pleas in law and main arguments

The applicant is party to Contract BU 209-95 concluded with the Commission in consequence of the invitation to tender in connection with the specific programme for research and technological development in the field of non-nuclear energy (1) and covering the execution of a project of renovation of a building in Lyon by using solar and bio-climatic architecture methods. The contract contains an arbitration clause under which the Community judicature has exclusive jurisdiction over disputes between the contracting parties as regards the validity, application and interpretation of the contract.

In execution of its contractual obligations, the applicant, on 12 December 2001, sent the Commission the final report on the project. The Commission did not accept that report and on 5 July 2002 served on the applicant a decision to recover payments made by refusing to accept certain costs declared by it in that report. Neither exchanges of correspondence between the parties, nor the meetings held, nor the intervention of a mediator could bring about an amicable settlement of the dispute. By registered letter of 30 August 2005, the Commission served the applicant with a final recovery decision preceded by a debit note of 23 August 2005. That decision is the subject of this action brought by the applicant on the basis of the arbitration clause.

The action seeks, principally, an order that the Commission pay 20 % of the balance of the subsidy allegedly due to the applicant under Contract BU 209-95.

In support of its claims, the applicant argues that any disagreement with the way the project was executed by the contracting parties should have been expressed by the Commission before the date on which the report was presumed to have been approved (two months from the date of deposit of the final report). In the applicant's view, the Commission is time-barred and cannot therefore constitute itself a creditor of the applicant. Consequently, being time-barred, the Commission remains indebted to the applicant for the balance of the subsidy which it undertook to pay under the contract in question.

(1) Programme put in place by Council Decision 94/806/EC of 23 November 1994 (OJ L 334 of 22 December 1994, p. 87).

25.3.2006

Official Journal of the European Union

C 74/21

Action brought on 25 November 2005 — Olympic Airways Services S.A. v Commission of the European Communities

(Case T-423/05)

(2006/C 74/42)

Language of the case: Greek

Parties

Applicant: Olympic Airways Services S.A. (Athens, Greece) (represented by: P. Anestis, T. Soames, D. Geradin, S. Mavroghenis and S. Jordan, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

—	annul in whole or in part, in accordance with Articles 230 and 231 EC, Decision C11/2004, concerning State aid alleged to have been granted by Greece to Olympic Airways Services S.A.;

—	order the Commission to pay the costs.

Pleas in law and main arguments

When the Greek state airline Olympic Airways was privatised, a new company (‘NOA’) began operating, taking over the flight operations, while the applicant (‘OA’) retained all other activities, principally ground handling, maintenance and aircraft repair. In the contested decision, the Commission found that Greece had granted to NOA and the applicant State aid that was incompatible with the Treaty, inter alia by reason of:

—	overvaluation of NOA's assets at the time when it was set up,

—	the making by the Greek State, as guarantor, of payments in respect of debts of OA,

—	the continuous forbearance displayed by the Greek State towards OA with regard to tax debts and social security contributions.

By its action, the applicant contests first of all the part of the decision that relates to the supposed overvaluation of NOA's assets when it was set up. The applicant pleads infringement of Article 87(1) and (3) EC and Article 253 EC (duty to state reasons). It submits that the ‘private investor’ test was misapplied since the Hellenic Republic acted as any well-advised private businessman would act. It further contends that methodology and conclusions were mistaken in relation to the calculation of the amount of the supposed benefit. It also argues that the reasoning with regard to fulfilment of the conditions required in order for Article 87(1) EC to apply was deficient.

So far as concerns the payment of sums by the State in respect of its debts, the applicant does not dispute that those payments were made, but considers that they do not involve elements of State aid and pleads in this regard that Article 87(1) EC has been infringed. More specifically, the applicant pleads that continuance of State aid, of which those payments by the Greek State form part, had been accepted by the Commission, and by the contested decision the Commission argues the contrary under a mistaken legal assessment. In the same context, the applicant contends that the Commission manifestly erred in its assessment in relation to the payments that were made before the alteration of certain guarantees and to the classification of certain payments by the State as State aid. The applicant also pleads, in relation to this part of the decision too, infringement of an essential procedural requirement, that is to say of the duty to state reasons.

In relation to the finding in the contested decision that Greece displayed ‘continuous forbearance’ towards OA, the applicant submits that Community law was infringed as regards the meaning of State aid, because the Commission did not examine Greece's conduct in the light of the ‘private creditor’ test and failed to satisfy the burden of proof. It further pleads that there was a manifest error of assessment in relation to the calculation and the quantification of the supposed benefit and that the reasons stated were insufficient.

Finally, the applicant pleads infringement of general principles of Community law, that is to say, first of all, the right to be heard, which it considers to have been infringed because of the Commission's refusal to grant the Hellenic Republic, and by extension the applicant itself as a directly affected party, access to the findings drawn up by a firm of auditors appointed by the Commission. The applicant further pleads infringement of the principle ‘non bis in idem’ because the contested decision has imposed interest, on the basis of the Community rate of interest, on the sums of aid which must be recovered, but the latter already include fines, interest and additional charges on the basis of the national provisions.

25.3.2006

Official Journal of the European Union

C 74/22

Action brought on 12 December 2005 — Ajinomoto/OHIM

(Case T-436/05)

(2006/C 74/43)

Language in which the application was lodged: English

Parties

Applicant: Ajinomoto Co., Inc. (Tokyo, Japan) [represented by: G. Würtenberger and R. Kunze, lawyers]

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

Other party/parties to the proceedings before the Board of Appeal: Kaminomoto Co. Ltd. (Hyogo-Ken, Japan)

Form of order sought

—	Annul the decision of the First Board of Appeal of OHIM dated 15 September 2005 in case R 1143/2004-1;

—	order OHIM 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 ‘AJINOMOTO’ for goods in classes 1, 5, 29, 30 and 31 — application No 1 307 024

Proprietor of the mark or sign cited in the opposition proceedings: Kaminomoto Co. Ltd.

Mark or sign cited: The national word mark ‘KAMINOMOTO’ for goods in class 3

Decision of the Opposition Division: Rejection of the opposition in its entirety

Decision of the Board of Appeal: Annulment of the Opposition Division's decision

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 since the Board of Appeal according to the applicant held that the opponent in the opposition proceedings only had to prove the existence of an earlier right at the time of the filing of the opposition. According to the applicant it is the time of the decision of the Opposition Division, or alternatively when the time-limit for providing further evidence expires, by which an earlier right has to be proven to be in force.

25.3.2006

Official Journal of the European Union

C 74/22

Action brought on 13 December 2005 — Royal Bank of Scotland/OHIM

(Case T-439/05)

(2006/C 74/44)

Language in which the application was lodged: English

Parties

Applicant: The Royal Bank of Scotland Group plc (Edinburgh, United Kingdom) [represented by: J. Hull, Solicitor]

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

Other party/parties to the proceedings before the Board of Appeal: Lombard Risk Systems Limited and Lombard Risk Consultants limited (London, United Kingdom)

Form of order sought

—	Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 21 July 2005 (Case R 370/2004-4) relating to Opposition Proceedings No. B 370959, notification of which was dated 13 October 2005; and

—	order the OHIM to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘LOMBARD DIRECT’ for services in classes 35, 36 and 42 — application No 1 523 992

Proprietor of the mark or sign cited in the opposition proceedings: Lombard Risk Systems Limited and Lombard Risk Consultants Limited

Mark or sign cited: The Community and national word marks ‘LOMBARD RISK’ and ‘LOMBARD GROUP OF COMPANIES’ for goods and services in classes 9, 36 and 41

Decision of the Opposition Division: Opposition upheld for part of the contested services

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 Board of Appeal applied an incorrect legal test when considering whether there was a likelihood of confusion between the conflicting marks in as much as it found it conceivable that confusion would occur and that the possibility of confusion could not be excluded. According to the applicant the Board thereby reversed the burden of proof, requiring the applicant to prove that there was no likelihood of confusion. Furthermore, the Board of Appeal failed to give proper reasons for its decision contrary to Article 73 of the Regulation.

25.3.2006

Official Journal of the European Union

C 74/23

Action brought on 16 December 2005 — Biofarma v OHIM

(Case T-442/05)

(2006/C 74/45)

Language in which the application was lodged: Spanish

Parties

Applicant: Biofarma (Neuilly-sur-Seine, France) (represented by: Victor Gil Vega and Antonia Ruiz López, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Anca Health Care Limited

Form of order sought

The applicant claims that the Court should:

—	annul the decision of the First Board of Appeal of OHIM of 26 September 2005 and declare that there is a likelihood of confusion between the marks CAFON and DAFLON which designate similar products;

—	order OHIM to pay the costs, including the fees of the applicant's representatives.

Pleas in law and main arguments

Applicant for a Community trade mark: Surtech International Ltd.

Community trade mark concerned: word mark ‘CAFON’ for goods in Class 5 (pharmaceutical products and substances).

Proprietor of the mark or sign cited in the opposition proceedings: the applicant.

Mark or sign cited in opposition: word mark ‘DAFLON’ (registered in Spain, Portugal, Benelux, Austria, France and Italy) for goods in Class 5 (pharmaceutical products and substances).

Decision of the Opposition Division: opposition dismissed.

Decision of the Board of Appeal: application dismissed.

Pleas in law: incorrect application of Article 8(1)(b) of Regulation No 40/94 on the Community trade mark.

25.3.2006

Official Journal of the European Union

C 74/24

Action brought on 16 December 2005 — El Corte Inglés S.A. v OHIM

(Case T-443/05)

(2006/C 74/46)

Language in which the application was lodged: Spanish

Parties

Applicant: El Corte Inglés S.A. (Madrid) (represented by: Juan Luis Rivas Zurdo, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM: Juan Bolaños Sabri

Form of order sought

The applicant claims that the Court should:

—

annul the decision of the First Board of Appeal, of 21 September 2005, in Case R 1191/2004-1, in so far as, by upholding the application by the applicant for the Community mark, that decision provides the basis for the future grant of Community trade mark No 2.456.242 ‘PRAÑAM DISEÑO ORIGINAL JUAN BOLAÑOS’, in Class 25;

—	refuse registration of the Community trade mark No 2.456.242 ‘PRAÑAM DISEÑO ORIGINAL JUAN BOLAÑOS’, Class 25;

—	order the party or parties opposing this application to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Juan Bolaños Sabri.

Community trade mark concerned: figurative mark ‘PIRAÑAM diseño original Juan Bolaños’ (Application No 2.456.242) for goods in Classes 16, 21 and 25.

Proprietor of the mark or sign cited in the opposition proceedings: the applicant.

Mark or sign cited in opposition: Spanish word marks ‘PIRANHA’ for goods in Classes 25 (No 790.520) and 18 (No 2.116.007).

Decision of the Opposition Division: the opposition upheld in part, the application for registration for goods in Class 25 being rejected.

Decision of the Board of Appeal: the decision appealed was annulled and the opposition set aside in its entirety.

Pleas in law: incorrect application of Article 8(1)(b) of Regulation No 40/94 on the Community trade mark.

25.3.2006

Official Journal of the European Union

C 74/24

Action brought on 22 December 2005 — Plantations de Mbanga v Commission

(Case T-447/05)

(2006/C 74/47)

Language of the case: French

Parties

Applicant: Société des plantations de Mbanga (SPM) SA, established in Douala, Cameroon, represented by: P. Soler Couteaux and S. Cahn, lawyers

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

—	annul Commission Regulation (EC) No 2015/2005 of 9 December 2005 on imports during January and February 2006 of bananas originating in ACP countries under the tariff quota opened by Council Regulation (EC) No 1964/2005 on the tariff rates for bananas;

—	order the Commission and the Council to pay all the costs and expenses.

Pleas in law and main arguments

In the context of the amendments to the specific regime for trade quotas with non-Member States forming part of the measures of market organisation in the banana sector, Council Regulation No 1964/2005 of 29 November 2005 (1), among other things, conferred on the Commission the power to enact the measures necessary to implement that regulation, as well as transitional measures relating to the management of the tariff quota for bananas originating in ACP countries. In that context, the Commission maintained in its Regulation No 2015/2005 of 9 December 2005 (2), for the months of January and February 2006, the previous system of granting import licences on the basis of historic references (3), as it was initially laid down by Regulation No 896/2001. The annulment of Regulation No 2015/2005 is sought in this action.

In support of its action, the applicant claims that by establishing, in its Articles 3 and 4, a system of allocation of import licences based on historic references and on the introduction of non-traditional operators, Regulation No 2015/2005 infringes:

—	the contractual framework of the banana market;

—	the philosophy and principles enshrined in the Community provisions in respect of common agricultural policy and common organisation of the banana markets and the provisions themselves of the Community legislation in question;

—

the principles enshrined in Articles 81 EC and 82 EC, in that it enables historic operators to abuse collectively the dominant position which, according to the applicant, is conferred on them by the regulatory provisions and in that it also encourages other anti-competitive practices on the Community banana market;

—	the principles enshrined in Article 87 EC, in that its effect is to confer a substantial financial advantage selectively on certain historically important traditional importers, who are able to profit from the resale of licences wrongly obtained gratuitously;

—

the principle of proportionality in that it does not permit the creation and development of the businesses of credible and viable non-traditional importers, who can survive only by relying on a traditional importer; in addition, the applicant claims that the regulation, annulment of which is sought, no longer enables ACP banana producers to take advantage in an equitable manner of the preference accorded to ACP bananas, since the system benefits excessively certain historically important traditional importers;

—	the principle of non-discrimination in that it applies apparently equitable treatment to all traditional ACP importers, whilst in reality, it favours unduly certain historically important traditional importers.

Finally, the applicant also relies, in support of its claims, on breach of the principles of legitimate expectations and of the freedom to carry on business.

(1) Regulation (EC) No 1964/2005 of 29 November 2005 on the tariff rates for bananas (OJ L 316 of 2.12.05).

(2) Commission Regulation (EC) No 2015/2005 of 9 December 2005 on imports during January and February 2006 of bananas originating in ACP countries under the tariff quota opened by Council Regulation (EC) No 1964/2005 on the tariff rates for bananas (OJ L 324, p. 5).

(3) Which is challenged by the applicant in Case T-128/05 pending before the Court of First Instance.

25.3.2006

Official Journal of the European Union

C 74/25

Action brought on 21 December 2005 — Automobiles Peugeot and Peugeot Nederland v Commission

(Case T-450/05)

(2006/C 74/48)

Language of the case: French

Parties

Applicants: Automobiles Peugeot SA (Paris, France) and Peugeot Nederland NV (Utrecht, Netherlands) (represented by: O. d'Ormesson and N. Zacharie, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

—	annul the Decision in the entirety of its operative part and the grounds supporrting it;

—	alternatively, vary Article 3 of the Decision and the grounds supporting it by reducing the fine of EUR 49.5 million;

—	order the Commission to pay the costs.

Pleas in law and main arguments

In this action the applicants seek the annulment of Commission Decision C(2005)3683 final of 5 October 2005 adopted as part of a procedure under Article 81 of the EC Treaty (Cases 36.623, 36.820 and 37.275 — SEP and Others/Automobiles Peugeot SA) by which the Commission found the practices applied by them intended to restrict exports of automobiles to be anti-competitive. The contested decision covers, in particular, the individual measures adopted by the applicants with regard to dealers: bonus system for dealers, policy restricting promotional campaigns, limited supplying of dealers, direct instructions. The applicants claim, in addition, alternatively, the reduction of the fine imposed by the Commission.

In support of their claims, the applicants submit that in its decision the Commission infringed the provisions of Article 81(1) of the EC Treaty, in that it found that the measures adopted by the applicants could be regarded as an ‘agreement’ within the meaning of that article.

In the alternative, they rely on pleas in law alleging errors of fact, erroneous assessment of the facts and error of law in that the Commission held that the system of payment of dealers had an anti-competitive object within the meaning of Article 81(1) of the EC Treaty. Moreover, the applicants call in question the determination of the length of the infringement made by the Commission in the contested decision in that the Commission made an error of fact and an erroneous assessment of the facts which led it, according to the applicants, to contradictions in the grounds of its decision.

The following plea in law covers the alleged insufficiency of the grounds of the contested decision so far as concerns the analysis of the effects of the measures alleged by the Commission. In addition, as part of that plea, the applicants accuse the Commission of having made errors of fact and an erroneous assessment of the facts and of having contradicted in the grounds of its decision.

In support of their alternative claim for the reduction of the fine imposed by the Commission, the applicants rely on a plea in law alleging infringement of Article 23(2) of Regulation No 1/2003 and of the Guidelines on the setting of fines (1) in the application of those provisions by the Commission.

(1) Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and of Article 65(5) of the EC Treaty (OJ C 9 of 14 January 1998, p. 3).

25.3.2006

Official Journal of the European Union

C 74/26

Action brought on 29 December 2005 — Bang & Olufsen/OHIM

(Case T-460/05)

(2006/C 74/49)

Language of the case: English

Parties

Applicant: Bang & Olufsen AS (Struer, Denmark) [represented by: K. Wallberg, lawyer]

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

Form of order sought

—	The decision taken by the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) on 22 October 2005 in case No. R0497/2005-1 be annulled and

—	the defendant pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Three-dimensional mark in form of a vertical pencil-shaped loudspeaker on a low pedestal for goods in classes 9 and 20 — application No 3 354 371

Decision of the examiner: Refusal of the application for all the claimed goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: The mark is in accordance with Article 7(1)(b) of Council Regulation No 40/94 inherently distinctive for all the goods covered by the application and if not so, it has acquired distinctiveness through use in accordance with Article 7(3) of the Regulation.

25.3.2006

Official Journal of the European Union

C 74/26

Action brought on 30 December 2005 — L' Oréal/OHIM

(Case T-461/05)

(2006/C 74/50)

Language in which the application was lodged: English

Parties

Applicant: L'Oréal S.A. (Paris, France) [represented by: X. Buffet Delmas d'Autane, lawyer]

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

Other party/parties to the proceedings before the Board of Appeal: Revlon (Suisse) S.A. (Schlieren, Switzerland)

Form of order sought

—	Annulment of the decision of the Fourth Board of Appeal of the OHIM of 17 October 2005 regarding the appeal R 0806/2002-4 relating to Opposition Proceedings No B 214 694 (Community trade mark Application No 1 011 014);

—	Order for all costs incurred in relation to all proceedings in this matter (in particular, the costs of the action and the appeal) to be awarded against the OHIM.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: The word mark ‘FLEXI TOUCH’ for goods in class 3

Proprietor of the mark or sign cited in the opposition proceedings: Revlon (Suisse) S.A.

Mark or sign cited: The national word mark ‘FLEX’ for goods in classes 3 and 34

Decision of the Opposition Division: Opposition upheld in its entirety

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Articles 15 and 43(2) of Council Regulation No 40/94 as the evidence filed by Revlon (Suisse) S.A. cannot be considered valid proof of genuine use of the word mark ‘FLEX’ during the relevant period, neither in the UK nor in France

Infringement of Article 8(1)(b) of the Regulation as there is no similarity between the conflicting trade marks and consequently no likelihood of confusion.

25.3.2006

Official Journal of the European Union

C 74/27

Action brought on 30 December 2005 — Toyoda Koki Kabushiki Kaisha/OHIM

(Case T-462/05)

(2006/C 74/51)

Language of the case:English

Parties

Applicant: Toyoda Koki Kabushiki Kaisha (Aichi-Ken, Japan) [represented by: J. F. Wachinger, lawyer]

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

Form of order sought

—

Declare the decision taken by the First Board of Appeal of the Office for Harmonisation in the Internal Market of 14 September 2005, in Case R 1157/2004-1 to be void and to allow the registration of the word mark application No. 003157492 ‘IFS’ for the goods ‘steering and power steering, both for vehicles and parts therefor, excluding independent front suspension’ in the international class 12, referring to the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks,

—

or, in the alternative, declare the decision taken by the First Board of Appeal of the Office for Harmonisation in the Internal Market of 14 September 2005, in Case R 1157/2004-1 to be void, to remand the case to the Board of Appeal of the Office for Harmonisation in the Internal Market for reconsideration, and for the issuance of a new decision,

—	impose the costs of the proceedings on the defendant.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘IFS’ for goods in class 12 — application No 3 157 492

Decision of the examiner: Refusal of the application in respect of all the designated goods

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Violation of Article 7(1)(b) and (c) of Council Regulation No 40/94 because of amongst others a wrongful definition of the relevant public and an erroneous assumption of descriptive meaning.

25.3.2006

Official Journal of the European Union

C 74/27

Action brought on 12 January 2006 — Republic of Poland v Commission of the European Communities

(Case T-4/06)

(2006/C 74/52)

Language of the case: Polish

Parties

Applicant: Republic of Poland (represented by: Jarosław Pietras, Agent of the Government)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

—	declare Article 2 of Commission Regulation (EC) No 1686/2005 of 14 October 2005 setting the production levies and the coefficient for the additional levy in the sugar sector for the 2004/05 marketing year (OJ 2005 L 271 of 15.10.2005, p. 12) to be invalid;

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

Pleas in law and main arguments

The applicant seeks a declaration of invalidity in respect of Article 2 of Regulation No 1686/2005, which sets the production levies and the coefficient for the additional levy in the sugar sector for the 2004/05 marketing year with a view to covering the outstanding balance of the overall loss, in accordance with Article 16 of Council Regulation (EC) No 1260/2001 (1). The disputed article of the regulation sets out different coefficients for the additional levy for, on the one hand, the States constituting the Community prior to 1 May 2004 and, on the other, the ‘new’ Member States.

In support of its action, the applicant sets out the following heads of complaint:

—

lack of competence on the part of the European Commission and breach of Article 16 of Council Regulation (EC) No 1260/2001, which, in the view of the applicant, empowers the European Commission to establish only one coefficient in a set amount for the entire Community, a fact which, according to the applicant, is confirmed by the various unequivocal and, in this regard, concordant language versions of the provisions contained in the regulation. The applicant further submits that the principles of the common organisation of the markets within the sugar sector not only cannot amount to justification for a departure from the textual interpretation of the provisions of Regulation (EC) No 1260/2001 but also rule out any such departure;

—

infringement of the principle of immediate and full acceptance of the acquis communautaire by the new Member States; according to the applicant, the differential coefficient for the additional levy is in fact a transitional measure which has no basis in the Act of Accession or in the measures adopted pursuant thereto. The applicant refers in this regard to Article 2 of the Act of Accession, which is the basis for the adoption by the Republic of Poland of the full rights and obligations flowing from membership, and which, in the view of the applicant, is also linked to the assumption of entitlement to benefit from overpayments and the obligation to make good losses on the market in sugar which have arisen over the preceding marketing years;

—

infringement of the principle of non-discrimination; the applicant criticises the Commission on the ground that the sole criterion for the differentiation in the coefficient in the regulation under challenge is the date on which Member States acceded to the European Union. In the applicant's view, the consequences of accession were exhaustively regulated in the Act of Accession and the measures adopted on the basis of that Act, and the date on which the European Union was enlarged cannot be an objective criterion capable of providing justification for the differentiation thus introduced;

—	infringement of the principle of solidarity; according to the applicant, the differentiation in the coefficient vis-à-vis the other Member States amounts to an arbitrary and disproportionate distribution of the costs of financing the sugar market and one which highlights a dearth of solidarity;

—	inadequate grounds given for the contested measure by reason of the European Commission's failure to indicate either the circumstances which could justify the differentiation in the coefficient or the objectives which such a differentiation ought to serve;

—

breach of an essential procedural requirement, inasmuch as Regulation (EC) No 1686/2005 was adopted in a manner contrary to the requirements of Article 3 of the Rules of Procedure of the Management Committee for Sugar and Article 3 of Council Regulation (EEC) No 1 determining the languages to be used by the European Economic Community (2) by reason of the fact that the European Commission, according to the applicant's contentions, did not submit during the 'comitological' procedure, a Polish-language version of the draft version of the contested measure. The applicant submits that this infringement is particularly flagrant in nature inasmuch as it relates to the draft version of a legal measure and reflects a consistent practice of the European Commission within the framework of the Management Committee for Sugar.

(1) 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 of 30.06.2001, p. 1).

(2) OJ, English Special Edition 1952-1958, p. 59, as amended.

25.3.2006

Official Journal of the European Union

C 74/28

Action brought on 9 January 2006 — Denmark v Commission

(Case T-5/06)

(2006/C 74/53)

Language of the case: Danish

Parties

Applicant: Kingdom of Denmark (Copenhagen, Denmark) (represented by: Jørgen Molde, Agent)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

—

annul Commission Decision 2005/717/EC of 13 October 2005 amending for the purposes of adapting to the technical progress the Annex to Directive 2002/95/EC of the European Parliament and of the Council on the restriction of the use of certain hazardous substances in electrical and electronic equipment (1), so far as points 1 and 2 of the Annex relating to DecaBDE in polymeric applications are concerned;

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

Pleas in law and main arguments

By the contested decision the Commission exempted the material DecaBDE in polymeric applications from the prohibition contained in Directive 2002/95/EC of the European Parliament and of the Council of 27 January 2003 on the restriction of the use of certain hazardous substances in electrical and electronic equipment (2) (‘the basic directive’).

The Danish Government submits that the contested decision is defective in law inasmuch as DecaBDE in polymeric applications is exempted from the prohibition in the basic directive, contrary to the conditions laid down therein, on the grounds that

—	such an exemption is not necessary in the light of scientific and technical progress;

—	the Commission did not exempt a specific application of the material from the prohibition but in practice introduced an across-the-board exemption for all polymeric applications;

—	the Commission failed to record that no possibilities for substituting or eliminating DecaBDE in polymeric applications have been found, which the Danish Government submits it ought to have done; and

—	the Commission did not carry out an assessment to determine whether the negative burden in terms of environment, health and/or consumer protection which would result from substitution would be greater than the potential advantages in terms of environment, health and/or consumer protection.

The Danish Government also submits that the Commission attached weight to an unlawful criterion, namely a general risk assessment of the exempted material DecaBDE, and that the decision is vitiated by a fundamental formal defect inasmuch as the Commission failed to provide adequate reasons as to why it took the view that the conditions for exempting DecaBDE in polymeric applications from the prohibition in the basic directive had been satisfied.

(1) OJ 2005 L 271, p. 48.

(2) OJ 2003 L 37, p. 19.

25.3.2006

Official Journal of the European Union

C 74/29

Action brought on 13 January 2006 — Mopro-Nord GmbH v Commission

(Case T-6/06)

(2006/C 74/54)

Language of the case: German

Parties

Applicant: Mopro-Nord GmbH (Altentreptow, Germany) (represented by: L. Harings and C.H. Schmidt)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

—

annul paragraphs 25 to 27 of the defendant's decision on State aid No N 363/2004 of 6 September 2005 (OJ 2005 C 262, p. 5) in so far as they are based on assertions made by the German authorities that expenditure incurred before the Commission approved this individually notifiable aid, relating to the investment premium (investment subsidy), is not eligible for aid;

—	in the alternative, annul the defendant's decision on State aid No N 363/2004 of 6 September 2005 (OJ 2005 C 262, p. 5) in its entirety;

—	order the defendant to pay the costs.

Pleas in law and main arguments

The applicant contests Commission Decision C(2005) 3310 final of 6 September 2005 relating to State aid No N 363/2005 for the construction of a whey refining plant. The beneficiary of that aid is Mopro-Nord GmbH in Mecklenburg-Vorpommern. In the contested decision, the Commission informed the Federal Republic of Germany that the aid notified by it is EC-compatible. The applicant contests the decision in particular in so far as it is based on assertions made by the German authorities that expenditure incurred before the Commission approved this individually notifiable aid, relating to the investment premium (investment subsidy), is not eligible for aid.

In support of its claim the applicant submits that the defendant's determination of the facts is erroneous. It also complains of a breach of the obligation to give reasons under Article 253 EC and infringement of the principles of legal security and certainty. Moreover, by the contested decision, the Commission has infringed Article 4(3) of Regulation (EC) No 659/1999 (1) and the principle of sound administration. The contested decision is also in breach of Article 87(3)(c) EC in conjunction with the Community framework for State aid in the agricultural sector (2). Finally, the applicant submits that the Commission's decision infringes the principle of protection of legitimate expectations and the prohibition of discrimination.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ L 83, 27.3.1999, p. 1).

(2) OJ 2000 C 28, p. 2, and OJ 2000 C 232, p. 19.

25.3.2006

Official Journal of the European Union

C 74/29

Action brought on 23 January 2006 — Giant (China) v Council

(Case T-17/06)

(2006/C 74/55)

Language of the case: English

Parties

Applicant: Giant (China) Co., Ltd (Kunshan City, China) [represented by: P. De Baere, lawyer]

Defendant: Council of the European Union

Form of order sought

—

Annul Council Regulation (EC) No 1892/2005 (1) of 14 November 2005 terminating the partial interim review of the anti-dumping measures applicable to imports of bicycles originating in the People's Republic of china, insofar as

—	it rejects the applicant's market economy status (‘MES’) claim;

—	it violates Article 253 EC inasmuch as it fails to state the reasons for which the applicant's MES claim was rejected; and

—	it breaches the WTO law by applying post factum market economy criteria to Chinese exporting producers ion some EC Member States; and

—	order the Council to bear the costs of these proceedings.

Pleas in law and main arguments

The applicant, a limited company incorporated under Chinese law, mainly produces bicycles and parts thereof, exporting to the Community. It contests Regulation 1892/2005 which terminated the partial interim review of the anti-dumping measures applicable on imports of bicycles originating in the People's Republic of China.

In support of its application, the applicant invokes first of all the same allegations of violation of Council Regulation 384/96 (‘the basic regulation’) and of Article 253 EC it had previously invoked in the context of Case T-372/05 (2).

The applicant further alleges that the contested Regulation breaches World Trade Organisation (‘WTO’) law in that it applies market economy criteria to Chinese exporters in five Member States whose anti-dumping legislation did not provide for such criteria at the time of China's accession to the WTO.

(1) OJ L 302, 19/11/2005, p. 22.

(2) OJ C 315, 10/12/2005, p. 17.

25.3.2006

Official Journal of the European Union

C 74/30

Action brought on 19 January 2006 — Zenab v Commission

(Case T-33/06)

(2006/C 74/56)

Language of the case: French

Parties

Applicant: Zenab SPRL (Brussels, Belgium) (represented by: J. Windey, P. de Bandt, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

—	annul the decision of the Commission of the European Communities dated 9 November 2005 under reference 648599;

—

hold the Community liable for non-contractual damage and order the Commission to pay the applicant (i) the sum of EUR 36 707 as damages in respect of the costs incurred for the purposes of the call for proposals, and (ii) the amount of the non-pecuniary loss because of damage to reputation and the material loss resulting from the delay in the execution of the EuroVOD project and appoint an expert to assess that loss, as determined by an expert to be appointed by the Court;

—	in any event, order the Commission to pay the costs of these proceedings.

Pleas in law and main arguments

This application seeks the annulment of the Commission's decision of 9 November 2005 rejecting the applicant's application for Community financial support within the framework of the MEDIA Plus programme (Call for Proposals INFSO/MEDIA/04/05), as well as compensation for the loss allegedly suffered by it because of the adoption of the contested decision.

In support of its action for annulment, the applicant relies on two pleas in law. The first plea alleges unlawful delegation of its powers by the Commission to the technical consultation group appointed to determine the application for financial support submitted by the applicant.

As part of the second plea in law, the applicant alleges that the Commission made manifest errors of assessment which, in its submission, justify the annulment of the contested decision. In the alternative, the applicant claims that the reasoning set out in the contested decision is insufficient and contradictory and does not enable the grounds justifying the rejection of its proposal to be understood.

For the purposes of the action for damages, the applicant seeks, relying on the principle of the non-contractual liability of the Community, compensation for the loss allegedly suffered because of the erroneous determination of its proposal submitted within the framework of the call for proposals in question. The applicant alleges that the Commission failed to comply with its duty of diligence and sound administration and that such conduct constitutes a serious breach of Community law justifying the engagement of the Community's liability.

25.3.2006

Official Journal of the European Union

C 74/31

Action brought on 23 January 2006 — Italian Republic v Commission

(Case T-38/06)

(2006/C 74/57)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: Paolo Gentili, Avvocato dello Stato)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

—	annul the memorandum of the Commission, Directorate-General of Regional Policy, No 11877 of 10 November 2005 — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning PEP Campania (No CCI 1999 IT 16 1 PO 007) — Request for Payment No 2005 2716;

—

annul the memorandum of the Commission, Directorate-General of Regional Policy, No 12362 of 18 November 2005 — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning SPD Ob 2 — Lazio 2000-2006 (No CCI 2000 IT 16 2 DO 009) — Request for Payment No SYSFIN 20052707 Adonis 2005 23064 letter of the Ministero dell'Economia e delle Finanze of 26 October — Protocol number 0031966;

—	annul the memorandum of the Commission, Directorate-General of Regional Policy, No 12363 of 18 November 2005 — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning PEP Campania (No CCI 1999 IT 161 PO 007) — Request for Payment No 2005 2871;

—	annul all connected and preliminary measures;

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

Pleas in law and main arguments

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

(1) OJ C 262 of 23. 10. 2004, p. 55.

25.3.2006

Official Journal of the European Union

C 74/31

Action brought on 16 February 2006 — Antartica/OHIM

(Case T-47/06)

(2006/C 74/58)

Language in which the application was lodged: English

Parties

Applicant: Antartica S.r.l. (Rome, Italy) [represented by: E. Racca, lawyer]

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

Other party to the proceedings before the Board of Appeal: The Nasdaq Stock Market, Inc. (Washington D.C., USA)

Form of order sought

—	annul the contested decision of the Second Board of Appeal of the OHIM, of 7 December 2005, in case R 752/2004 — 2, on the grounds that it does not comply with Article 63 (2) and Article 8 (5) of Regulation No. 40/94 and Article 5.1.2. of the Directive No 89/104/CEE;

—	order the defendant to pay the costs.

Pleas in law and main arguments

Applicant for the Community trade mark: The applicant

Community trade mark concerned: Figurative mark ‘Nasdaq’ for goods in classes 9, 12, 14, 25 and 28

Proprietor of the mark or sign cited in the opposition proceedings: The Nasdaq Stock Market, Inc.

Mark or sign cited: Community word trade mark ‘Nasdaq’ for goods and services in classes 9, 16, 35, 36, 38 and 42 as well as earlier well known mark ‘Nasdaq’ in all Members States of the European Union

Decision of the Opposition Division: Rejects opposition

Decision of the Board of Appeal: Annuls the decision of the opposition division and rejects the application

Pleas in law: Violation of Articles 63 (2) and 8 (5) of Regulation No 40/94 as well as Article 5.1.2. of Directive No. 89/104/CEE; the applicant submits that the earlier unregistered word mark was not, in fact, invoked in the notice of opposition. It also contests the findings that the reputation of the stock exchange index ‘nasdaq’ is the same as the reputation of the trade mark of the same name. It finally submits that the notion of reputation in Regulation 40/94 and Directive 89/104 is not the same as notoriety under the Paris Convention.

25.3.2006

Official Journal of the European Union

C 74/33

Action brought on 1 January 2006 — Fernandez Ortis v Commission

(Case F-1/06)

(2006/C 74/64)

Language of the case: Spanish

Parties

Applicant: Juan Miguel Fernandez Ortis (Madrid, Spain) (represented by: J. R. Iturriagagoitia Bassas, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

—	declare that the dismissal of the applicant by decision of 17 June 2005 is unlawful, constituting an abuse of legal process, and accordingly annul that decision and the decision associated with it of 23 September 2005;

—	order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, a former official of the Commission, took up his duties on 1 February 2004, the date on which his nine-month probationary period began, in accordance with Article 34(1) of the Staff Regulations of officials of the European Communities.

A report of 4 October 2004 recommended his dismissal, but the Commission decided exceptionally to extend his probationary period until 30 April 2005 in accordance with Article 34(3) of the Staff Regulations. By decision of 17 June 2005 the Commission dismissed the applicant with effect from 1 July 2005.

In support of his application, the applicant claims that his dismissal is unlawful on the ground that he was dismissed 17 months after the commencement of his probationary period, which, under Article 34(4) of the Staff Regulations, may not exceed 15 months.

25.3.2006

Official Journal of the European Union

C 74/33

Action brought on 6 January 2006 — Frankin and Others v Commission

(Case F-3/06)

(2006/C 74/65)

Language of the case: French

Parties

Applicants: Jacques Frankin (Sorée, Belgium) and Others (represented by: G. Bounéou and F. Frabetti, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicants claim that the Court should:

—	annul the explicit decision of 10 June 2005 whereby the Commission refused to afford the applicants assistance under Article 24 of the Staff Regulations;

—	order the Commission to make good all the loss thereby sustained by the applicants;

—	order the defendant to pay the costs.

Pleas in law and main arguments

The applicants, who are all officials or other servants of the Commission, had sought to have their pension entitlement acquired in Belgium transferred to the Community system, in accordance with the provisions of a Belgian law enacted in 1991. In 2003 Belgium enacted a new law, which, in the applicants' submission, provides more favourable for new transfers of that type. As the applicants had already transferred their rights, however, they were unable to take advantage of the provisions of the Law of 2003.

The applicants therefore submitted a request seeking to obtain the assistance provided for in Article 24 of the Staff Regulations. The Commission, which had no intention of assisting its officials and temporary servants to secure those transfers, rejected their request by decision of 10 June 2005.

By their action, the applicants contest that decision, which they treat as a refusal to afford assistance, in breach of Article 24 of the Staff Regulations. In addition to that article, they rely in support of their claims on a breach of the duty to have regard to the welfare of the staff, of the principle of non-discrimination, of the prohibition of unfair process, of the obligation to state reasons, of legitimate expections and of the rule patere legem quam ipse fecisti and on a misuse of powers.

25.3.2006

Official Journal of the European Union

C 74/34

Action brought on 13 January 2006 — Villa and Others v Parliament

(Case F-4/06)

(2006/C 74/66)

Language of the case: French

Parties

Applicants: Renata Villa (Senningerberg, Luxembourg) and Others (represented by: G. Bounéou and F. Frabetti, lawyers)

Defendant: European Parliament

Form of order sought

The applicants claim that the Court should:

—

annul decisions Nos 102494, 102494 and 102496 of 8 February 2005 whereby the appointing authority of the European Parliament refused to reimburse to the applicants the excess premium resulting from the difference between the rights acquired during the years when they were affiliated to the Italian scheme and the number of annuities transferred to the Community scheme following a new calculation of the transfer of their pension rights;

—	order the defendant to pay the costs.

Pleas in law and main argument

In 1991, the applicants, who are officials of the European Parliament, transferred to the Community scheme the pension rights which they had acquired in Italy before entering the service of the Communities. The difference between the actual number of years of affiliation to the Italian scheme and the number of annuities resulting from the calculation of the premium in the Community scheme was determined in accordance with the general implementing provisions then applied by the Parliament, which did not align the premium with the number of years of affiliation in Italy.

Following the entry into force of the new Staff Regulations, the applicants submitted requests seeking to obtain a new calculation of the premium previously obtained, in reliance on Article 26(5) and (6) of Annex XIII to the Staff Regulations. The requests were rejected and the applicants lodged complaints, which were also rejected by the appointing authority.

In their action, the applicants claim that there has been a breach of Article 26 of Annex XIII to the new Staff Regulations, and also of Article 1(2) of Annex VIII to the Staff Regulations, in both the new and the old versions.

They further maintain that the Parliament has also breached the principles of proper administration, of equal treatment, of non-discrimination, of the prohibition of unfair process, of the protection of legitimate expectations, of non-enrichment and also of the duty to have regard for the welfare of staff.

25.3.2006

Official Journal of the European Union

C 74/34

Action brought on 18 January 2006 — Patak Dennstedt v Commission

(Case F-5/06)

(2006/C 74/67)

Language of the case: French

Parties

Applicant: Dunja Patak Dennstedt (London, United Kingdom) (represented by: S. Rodrigues, Y. Minatchy, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Appointing Authority of 4 October 2005 dismissing the applicant's objection taken together with the decision to reject the application previously submitted by the applicant;

—	Order the Commission to pay the applicant the sum of EUR 35 000 as compensation for the loss suffered;

—	In the alternative, order the withdrawal of the disputed document from the inquiry report of 18 September 2001;

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

Pleas in law and main arguments

The applicant, a Commission official receiving invalidity allowance, brought an action before the Court of First Instance for the annulment of certain decisions taken by the defendant. During those proceedings, she gained knowledge of a number of documents relating to internal Commission proceedings which concerned her and submitted an application, firstly, to obtain the withdrawal from the file of documents in which an official appeared to draw personal conclusions about the applicant's occupational illness and, secondly, to check whether the conduct of certain officials during a disciplinary procedure had complied with the requirements under the Staff Regulations.

The application having been rejected, the applicant entered an objection, which was also dismissed by the appointing authority.

In her action, the applicant first submits that the decision dismissing her objection is in breach of the defendant's obligations towards its officials. In her view, that decision infringes a number of general legal principles, such as the principle of good administration and the duty to have regard for the interests of officials.

The applicant subsequently adds that the Commission officials who spread and even included in an inquiry report false information about her occupational illness were guilty of serious misconduct. That misconduct leads to liability on the part of the defendant, who should therefore pay compensation for the material and non-material damage suffered by the applicant.

25.3.2006

Official Journal of the European Union

C 74/35

Action brought on 3 February 2006 — Tolios and Others v Court of Auditors

(Case F-8/06)

(2006/C 74/68)

Language of the case: French

Parties

Applicants: Iraklis Tolios (Paris, France), François Muller (Strasbourg, France) and Odette Perron (La Rochelle, France) (represented by: G. Vandersanden and L. Levi, lawyers)

Defendant: Court of Auditors

Form of order sought

The applicants claim that the Court should:

—	declare the action admissible and well founded, including the objection of illegality contained therein;

—

in consequence, annul the applicants' pension slips for March 2005, the effect of which will be to apply a weighting at the level of the capital of their country of residence or, at the very least, a weighting capable of adequately reflecting the differences in the cost of living in the places where the applicants are deemed to incur their expenditure and therefore consistent with the principle of equivalence;

—	order the defendant to pay the costs.

Pleas in law and main arguments

The applicants in the present case are all officials who retired before 1 May 2004. They contest the transitional regime put in place, pending the abolition of weightings, by Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities (1), in so far as that regime is based on new ‘pension’ weightings which are no longer calculated by reference to the capital but according to the average cost of living in the Member State in which the pensioner shows that he has established his principal residence.

In support of their claims, the applicants maintain, first of all, that the regulation is based on incorrect reasoning, in so far as neither the deepened integration of the Community, nor freedom of movement and residence, nor the difficulty in monitoring the actual place of residence of pensioners can serve as a basis for the transitional regime in question.

The applicants further maintain that there has been a breach in the present case of the principles of equal treatment, legal certainty, the retroactivity of acquired rights and the protection of legitimate expectations.

(1) OJEU 2004 L 124 of 27.04.2004, p. 1.

25.3.2006

Official Journal of the European Union

C 74/35

Action brought on 30 January 2006 — Canteiro Lopez v Commission

(Case F-9/06)

(2006/C 74/69)

Language of the case: French

Parties

Applicant: Rui Canteiro Lopez (Lisbon, Portugal) and Others (represented by: S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

—	Annul the decision of the Appointing Authority of 13 October 2005 not to add the applicant's name to the list of officials judged to be the most deserving and not to promote him to Grade A4 in the 2000 promotion exercise.

—	Order the defendant to pay the costs.

Pleas in law and main arguments

On 21 December 2000, the applicant submitted a complaint against the decision not to promote him to Grade A4 in the 2000 promotion exercise. On 2 July 2001, the defendant allowed that complaint and informed the applicant that action had been taken to finalise his staff report, but this was not done. As a result, the applicant submitted an application for information about the steps taken as a result of that decision of 2 July 2001. The defendant, after having acknowledged that the 1995-1997 and 1997-1999 staff reports had not yet been finalised, offered to set the applicant's 1997-1999 report at the same level as the report which he had obtained for the period 1991-2001.

Although the applicant refused that offer, the defendant nevertheless concluded the applicant's staff report for the period 1997-1999 and decided not to add his name to the list of officials judged to be the most deserving, and not to promote him to Grade A4 in the 2000 promotion exercise.

In support of his action, the applicant first submits that that decision is invalidated inasmuch as it was taken without there being any lawfully finalised staff reports for the periods at issue. The defendant is accused of effectively committing a breach of its administrative duty by not ensuring that the applicant's staff reports for the period between 1 July 1995 and 30 June 1999 were drawn-up at the appropriate time.

The applicant also maintains that the defendant carried out the consideration of the applicant's comparative merits in an improper manner, inasmuch as it made use of alternative criteria, such as age and length of service, which may only be applied where the officials eligible for promotion are of equal merit, a condition which was not met in this instance. The contested decision therefore infringes Article 45 of the Staff Regulations and the principle of equal treatment.

25.3.2006

Official Journal of the European Union

C 74/36

Action brought on 31 January 2006 — Larsen v Commission

(Case F-11/06)

(2006/C 74/70)

Language of the case: French

Parties

Applicants: Holger Larsen (London, United Kingdom) and Others (represented by: S. Orlandi, A. Coolen, J.-N. Louis, E. Marchal, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicants claim that the Court should:

—	Annul the decision of 2 March 2005 made by the Director of the Office for Administration and Payment of Individual Entitlements to reduce the applicant's remuneration from 1 May 2005;

—	Order the defendant to pay the applicant the rent allowance to which he is entitled, since the day on which it ceased to be paid to him, together with compensatory interest calculated at a rate two points above the central rate of the European Central Bank;

—	Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, an official assigned to the Commission Representation Office in London, received from 1 October 2002 a rent allowance under Article 14a of Annex VII to the Staff Regulations and Regulation No 6/66/Euratom and No 121/66/EEC (1). That article was repealed when the Staff Regulations were reformed and so the Commission, by decision of 2 May 2005, withdrew that allowance from the applicant.

In support of his action, the applicant first alleges the infringement of Article 62 of the Staff Regulations and Article 19 of Annex XIII thereto. He points out, in particular, that the defendant was wrong to apply the latter article in accordance with the interpretation adopted by the Heads of Administration on 14 October 2004, which excludes the rent allowance from the remuneration covered by the transitional measures laid down in that article. Such an interpretation is unlawful, inasmuch as it reduces the scope of the net income guarantee referred to by the provision in question.

In addition, the applicant contends that the contested decision infringes the principle of the equivalent purchasing power of officials, as prescribed by Articles 64 and 65 of the Staff Regulations.

(1) Regulation No 6/66/Euratom, 121/66/EEC of the Councils of 28 July 1966 laying down the list of places for which a rent allowance may be granted, the maximum amount of that allowance and the rules for granting it, OJ, English Special Edition 1965-6 (1), p. 212.

		ISSN 1725-2423
Official Journal of the European Union		C 74

English edition	Information and Notices	Volume 49 25 March 2006

Notice No	Contents	page
	I Information
	Court of Justice
	COURT OF JUSTICE
2006/C 074/1	Judgment of the Court (Third Chamber) of 12 January 2006 in Joined Cases C-354/03, C-355/03 and C-484/03: References for a preliminary ruling from the High Court of Justice of England and Wales, Chancery Division (United Kingdom) in Optigen Ltd, Fulcrum Electronics Ltd and Bond House Systems Ltd v Commissioners of Customs & Excise (Sixth VAT Directive — Article 2(1), Article 4(1) and (2) and Article 5(1) — Deduction of input tax — Economic activity — Taxable person acting as such — Supply of goods — Transaction forming part of a chain of supply involving a defaulting trader or a trader using an unauthorised VAT number — Carousel fraud)	1

2006/C 074/2	Judgment of the Court (Second Chamber) of 19 January 2006 in Case C-547/03 P Asian Institute of Technology (AIT) v Commission of the European Communities (Appeal — Asia-Invest Programme — Public call for proposals — Contract — Article 111 of the Rules of Procedure of the Court of First Instance — Manifest inadmissibility — No legal interest in bringing proceedings — Article 64 of the Rules of Procedure of the Court of First Instance — Measures of organisation of procedure — Request for production of documents — Parties requested to make written submissions on certain aspects of the proceedings)	1

2006/C 074/3	Case C-434/05: Reference for a preliminary ruling from the Hoge Raad Der Nederlanden by order of that court of 2 December 2005 in Stichting Regionaal Opleidingen Centrum Noord-Kennemerland/West-Friesland (Horizon College) v Staatssecretaris van Financiën	2

2006/C 074/4	Case C-435/05: Reference for a preliminary ruling from the Hoge Raad Der Nederlanden by order of that court of 2 December 2005 in Investrand B.V. v Staatssecretaris van Financiën	2

2006/C 074/5	Case C-450/05: Reference for a preliminary ruling from the Landessozialgericht Berlin-Brandenburg by order of that court of 11 November 2005 in Peter Wachter v Deutsche Rentenversicherung Bund	3

2006/C 074/6	Case C-464/05: Reference for a preliminary ruling from the Burgerlijke Rechtbank van Eerste Aanleg, Hasselt, by order of that court of 21 December 2005 in M.C.J.A. Geurts and D.H.M. Vogten v The Belgian State, Federale Overheidsdienst Financiën	3

2006/C 074/7	Case C-466/05: Reference for a preliminary ruling from the Tribunale di Lecce by order of that court of 6 December 2005 in criminal proceedings against Gianluca Damonte	3

2006/C 074/8	Case C-467/05: Reference for a preliminary ruling from the Tribunale di Milano by order of that court of 6 October 2005 in Ministero Pubblico v Giovanni Dell'Orto	4

2006/C 074/9	Case C-1/06: Reference for a preliminary ruling from the Finanzgericht Hamburg (Hamburg Finance Court) by order of that court of 15 December 2005 in Bonn Fleisch Ex-und Import GmbH v Hauptzollamt Hamburg-Jonas	4

2006/C 074/0	Case C-5/06: Reference for a preliminary ruling from the Finanzgericht Düsseldorf by order of that court of 2 January 2006 in Jülich AG v Hauptzollamt Aachen	4

2006/C 074/1	Case C-15/06 P: Appeal brought on 11 January 2006 by the Regione Siciliana against the judgment of the Court of First Instance of the European Communities (First Chamber, Extended Composition) of 18 October 2005 in Case T-60/03 Regione Siciliana v Commission of the European Communities	5

2006/C 074/2	Case C-17/06: Reference for a preliminary ruling from the Cour d'appel de Nancy by judgment of that court of 9 January 2006 in S.A.R.L. CELINE v S.A. CELINE	5

2006/C 074/3	Case C-23/06, Case C-24/06, Case C-25/06, Case C-26/06, Case C-27/06, Case C-28/06, Case C-29/06, Case C-30/06, Case C-31/06, Case C-32/06, Case C-33/06, Case C-34/06, Case C-35/06, Case C-36/06: References for a preliminary ruling from the Tribunal de Grande Instance de Nanterre by judgments of that court of 5 January 2006 in — Société Saint Louis Sucre SNC v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects — Societe des Sucreries du Marquenterre SA v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects — SA des Sucreries de Fontaine Le Dun, Bolbec, Auffay (SAFBA) v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects — Lesaffre Frères SA v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects — Sucreries, Distilleries des Hauts de France v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects — Sucreries & Distilleries de Souppes — Ouvré Fils SA v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects — Sucreries de Toury et usines annexes SA v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects — Tereos v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects — SAS Sucrerie du Littoral Groupe S.D.H.F v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects — Cristal Union v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects — Sucrerie Bourdon v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects — Sucrerie de Bourgogne SA v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects — SAS Vermendoise Industries v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects — Sucreries et Raffineries d'Erstein SA v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects	6

2006/C 074/4	Case C-38/06: Action brought on 24 January 2006 by the Commission of the European Communities against the Portuguese Republic	7

2006/C 074/5	Case C-42/06: Action brought on 27 January 2006 by the Commission of the European Communities against the Kingdom of Belgium	8

2006/C 074/6	Case C-46/06: Action brought on 30 January 2006 by the Commission of the European Communities against the Czech Republic	9

2006/C 074/7	Case C-52/06: Action brought on 1 February 2006 by the Commission of the European Communities against the Kingdom of Spain	9

2006/C 074/8	Case C-53/06: Action brought on 1 February 2006 by the Commission of the European Communities against the Kingdom of Spain	10

2006/C 074/9	Case C-54/06: Action brought on 1 February 2006 by the Commission of the European Communities against the Kingdom of Belgium	10

2006/C 074/0	Case C-57/06 P: Appeal brought on 2 February 2006 by Elisabetta Righini against the judgment of the Court of First Instance (Fifth Chamber) of 15 November 2005 in Case T-145/04 Elisabetta Righini v Commission of the European Communities	11

2006/C 074/1	Case C-68/06: Action brought on 6 February 2006 by the Commission of the European Communities against the Hellenic Republic	11

2006/C 074/2	Case C-69/06: Action brought on 6 February 2006 by the Commission of the European Communities against the Slovak Republic	12

2006/C 074/3	Case C-71/06: Action brought on 7 February 2006 by the Commission of the European Communities against the Italian Republic	12

2006/C 074/4	Case C-72/06: Action brought on 7 February 2006 by the Commission of the European Communities against the Hellenic Republic	12

2006/C 074/5	Case C-77/06: Action brought on 9 February 2006 by the Commission of the European Communities against the Grand-Duchy of Luxembourg	13

2006/C 074/6	Case C-78/06: Action brought on 9 February 2006 by the Commission of the European Communities against the Grand Duchy of Luxembourg	13

2006/C 074/7	Case C-85/06: Action brought on 10 February 2006 by the Commission of the European Communities against the Hellenic Republic	13

2006/C 074/8	Case C-86/06: Action brought on 13 February 2006 by the Commission of the European Communities against the Hellenic Republic	14

	COURT OF FIRST INSTANCE
2006/C 074/9	Case T-92/02: Judgment of the Court of First Instance of 26 January 2006 — Stadtwerke Schwäbisch Hall and Others v Commission (State aid — tax exemption scheme applied to the reserves established by nuclear installations established in Germany for the purpose of eliminating their radioactive waste and the definitive — Decision finding that there is no Sate aid at the end of the preliminary examination procedure — Action for annulment)	15

2006/C 074/0	Case T-107/03: Judgment of the Court of First Instance of 18 January 2006 — Regione Marche v Commission (Integrated Mediterranean Programme (IMP) for the Marche Region (Italy) — Conclusion of financial assistance — Ineligible expenditure — Action for annulment — Absence of legal basis — Legitimate expectation — Failure to state grounds )	15

2006/C 074/1	Case T-147/03: Judgment of the Court of First Instance of 12 January 2006 — Devinlec v OHIM (Community trade mark — Figurative mark containing the verbal element quantum — Opposition of the proprietor of the national figurative mark Quantième — Relative ground of refusal — Likelihood of confusion — Article 8(1)(b), Article 15(2) and Article 43(3) of Regulation (EC) No 40/94)	16

2006/C 074/2	Case T-276/03: Judgment of the Court of First Instance of 25 January 2006 — Le Canne v Commission (Judgment annulling a Commission decision reducing the amount of Community financial assistance — Procedures for compliance — Action for failure to act — No need to adjudicate — Action for compensation)	16

2006/C 074/3	Case T-317/03: Judgment of the Court of First Instance of 26 January 2006 — Volkswagen v OHIM (Community trade mark — Opposition proceedings — Application for Community word mark Variant — Earlier national word mark DERBIVARIANT — Refusal of registration by the Board of Appeal — Likelihood of confusion — Articles 74(1) and 8(1)(b) of Regulation (EC) No 40/94)	17

2006/C 074/4	Case T-364/03: Judgment of the Court of First Instance of 26 January 2006 — Medici Grimm v Council (Dumping — Imports of leather handbags originating in the People's Republic of China — Amendment of a regulation imposing a definitive anti-dumping duty — No retroactive effect — Annulment by the Court of First Instance — Action for damages — Sufficiently serious breach)	17

2006/C 074/5	Case T-33/04: Judgment of the Court of First Instance of 25 January 2006 — Weißenfels v Parliament (Officials — Remuneration — Dependent child allowance — Double allowance for a handicapped child — Article 67(2) of the Staff Regulations — Deduction of an allowance of like nature)	18

2006/C 074/6	Case T-398/04: Judgment of the Court of First Instance of 17 January 2006 — Henkel v OHIM (Community trade mark — Figurative mark — Red and white rectangular tablet with an oval blue centre — Absolute ground for refusal — Article 7(1)(b) of Regulation (EC) No 40/94 — Absence of distinctive character)	18

2006/C 074/7	Case T-369/03: Order of the Court of First Instance of 14 December 2005 — Arizona Chemical BV and Others v Commission (Directive 67/548/EEC — Refusal to declassify rosin as a dangerous substance — Action for annulment — Act not open to challenge — Action for damages — Limitation — Plea of illegality — Inadmissibility)	18

2006/C 074/8	Case T-85/05: Order of the Court of First Instance of 13 January 2006 — Dimos Ano Liosion and Others v Commission (Inadmissibility — Persons not the addressees of Community measures — Direct concern)	19

2006/C 074/9	Case T-177/05: Order of the Court of First Instance of 9 January 2006 — Finland v Commission (Procedural issues — Objection of inadmissibility — Acts not producing binding legal effects — European Communities' own resources — Infringement proceedings — Interest for delayed entry provided for in Article 11 of Regulation (EC, Euratom) No 1150/2000 — Negotiation of an agreement on conditional payment)	19

2006/C 074/0	Case T-396/05: Action brought on 2 November 2005 — ARCHI.M.E.D.-E.S v Commission	20

2006/C 074/1	Case T-397/05: Action brought on 3 November 2005 — ARCHI.M.E.D.-E.S v Commission	20

2006/C 074/2	Case T-423/05: Action brought on 25 November 2005 — Olympic Airways Services S.A. v Commission of the European Communities	21

2006/C 074/3	Case T-436/05: Action brought on 12 December 2005 — Ajinomoto/OHIM	22

2006/C 074/4	Case T-439/05: Action brought on 13 December 2005 — Royal Bank of Scotland/OHIM	22

2006/C 074/5	Case T-442/05: Action brought on 16 December 2005 — Biofarma v OHIM	23

2006/C 074/6	Case T-443/05: Action brought on 16 December 2005 — El Corte Inglés S.A. v OHIM	24

2006/C 074/7	Case T-447/05: Action brought on 22 December 2005 — Plantations de Mbanga v Commission	24

2006/C 074/8	Case T-450/05: Action brought on 21 December 2005 — Automobiles Peugeot and Peugeot Nederland v Commission	25

2006/C 074/9	Case T-460/05: Action brought on 29 December 2005 — Bang & Olufsen/OHIM	26

2006/C 074/0	Case T-461/05: Action brought on 30 December 2005 — L' Oréal/OHIM	26

2006/C 074/1	Case T-462/05: Action brought on 30 December 2005 — Toyoda Koki Kabushiki Kaisha/OHIM	27

2006/C 074/2	Case T-4/06: Action brought on 12 January 2006 — Republic of Poland v Commission of the European Communities	27

2006/C 074/3	Case T-5/06: Action brought on 9 January 2006 — Denmark v Commission	28

2006/C 074/4	Case T-6/06: Action brought on 13 January 2006 — Mopro-Nord GmbH v Commission	29

2006/C 074/5	Case T-17/06: Action brought on 23 January 2006 — Giant (China) v Council	29

2006/C 074/6	Case T-33/06: Action brought on 19 January 2006 — Zenab v Commission	30

2006/C 074/7	Case T-38/06: Action brought on 23 January 2006 — Italian Republic v Commission	31

2006/C 074/8	Case T-47/06: Action brought on 16 February 2006 — Antartica/OHIM	31

2006/C 074/9	Case T -67/03: Order of the Court of First Instance of 17 January 2006 — Henkel v OHIM	32

2006/C 074/0	Case T -341/04: Order of the Court of First Instance of 6 February 2006 — Datac v OHIM	32

2006/C 074/1	Case T -397/04: Order of the Court of First Instance of 19 January 2006 — MobilCom v Commission	32

2006/C 074/2	Case T -155/05: Order of the Court of First Instance of 11 January 2006 — Steinmetz v Commission	32

2006/C 074/3	Case T -231/05: Order of the Court of First Instance of 9 January 2006 — Corsica Ferries France v Commission	32

	EUROPEAN UNION CIVIL SERVICE TRIBUNAL
2006/C 074/4	Case F-1/06: Action brought on 1 January 2006 — Fernandez Ortis v Commission	33

2006/C 074/5	Case F-3/06: Action brought on 6 January 2006 — Frankin and Others v Commission	33

2006/C 074/6	Case F-4/06: Action brought on 13 January 2006 — Villa and Others v Parliament	34

2006/C 074/7	Case F-5/06: Action brought on 18 January 2006 — Patak Dennstedt v Commission	34

2006/C 074/8	Case F-8/06: Action brought on 3 February 2006 — Tolios and Others v Court of Auditors	35

2006/C 074/9	Case F-9/06: Action brought on 30 January 2006 — Canteiro Lopez v Commission	35

2006/C 074/0	Case F-11/06: Action brought on 31 January 2006 — Larsen v Commission	36

	III Notices
2006/C 074/1	Last publication of the Court of Justice in the Official Journal of the European UnionOJ C 60, 11.3.2006	37