25.8.2007

Official Journal of the European Union

C 199/2

Judgment of the Court (First Chamber) of 28 June 2007 (reference for a preliminary ruling from the Landgericht Baden-Baden (Germany)) — Albert Reiss Beteiligungsgesellschaft mbH v Land Baden-Württemberg

(Case C-466/03) (1)

(Directive 69/335/EEC - Indirect taxes on the raising of capital - National provisions which provide for notarial fees to be charged for the authentication of the transfer of shares in limited liability companies - Tax decision - Classification as a ‘duty similar to capital duty’ - Prior formality - Duties on the transfer of securities - Duties paid by way of fees or dues)

(2007/C 199/02)

Language of the case: German

Referring court

Landgericht Baden-Baden

Parties to the main proceedings

Applicant: Albert Reiss Beteiligungsgesellschaft mbH

Defendant: Land Baden-Württemberg

Re:

Reference for a preliminary ruling — Landesgericht Baden-Baden — Interpretation of Article 10(c) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition 1969 (II), p. 412), as amended by Council Directive 85/303/EEC of 10 June 1985 (OJ 1985 L 156, p. 23) — Increase in the capital of a private limited company by means of a contribution of shares held in another company — Charges demanded for the drawing up of the notarially attested act recording the share transfer.

Operative part of the judgment

Article 10(c) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, precludes the charging of notarial fees for the authentication of a transfer of shares in a company made as a contribution in the course of an increase in the share capital of a capital company, in a system characterised by the fact that notaries are employed as civil servants and that the fees are, at least in part, paid to the State to subsidise public expenditure.

(1) OJ C 21, 24.1.2004.

25.8.2007

Official Journal of the European Union

C 199/2

Judgment of the Court (Second Chamber) of 28 June 2007 — Commission of the European Communities v Kingdom of Spain

(Case C-235/04) (1)

(Failure of a Member State to fulfil obligations - Directive 79/409/EEC - Conservation of wild birds - Special protection areas - IBA 98 - Value - Quality of the data - Criteria - Margin of discretion - Manifest inadequacy as to number and size of areas classified)

(2007/C 199/03)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: M. van Beek and G. Valero Jordana, acting as Agents)

Defendant: Kingdom of Spain (represented by: N. Díaz Abad, Agent)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1) — Failure to classify as special protection areas the areas most appropriate for conservation of the species listed in Annex I to the Directive and migratory species

Operative part of the judgment

The Court:

Declares that, by failing to classify as special protection areas for birds territories of adequate size in the Autonomous Communities of Andalusia, the Balearics and the Canaries, and territories of sufficient number in the Autonomous Communities of Andalusia, the Balearics, the Canaries, Castilla-La Mancha, Catalonia, Galicia and Valencia to provide protection for all the species of birds listed in Annex I to Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, as amended, inter alia, by Commission Directive 97/49/EC of 29 July 1997, and the migratory species not covered by that annex, the Kingdom of Spain has failed to fulfil its obligations under Article 4(1) and (2) of Directive 79/409, as amended;

2.	Dismisses the remainder of the action;

3.	Orders the Kingdom of Spain to pay the costs.

(1) OJ C 201, 7.8.2004.

25.8.2007

Official Journal of the European Union

C 199/3

Judgment of the Court (Grand Chamber) of 26 June 2007 (reference for a preliminary ruling from the Landesgericht für Zivilrechtssachen Wien (Austria)) — T-Mobile Austria GmbH, 3G Mobile Telecommunications GmbH, Mobilkom austria Aktiengesellschaft, formerly mobilkom austria AG & Co. KG, Master-talk Austria Telekom Service GmbH & Co. KG, ONE GmbH, Hutchison 3G Austria GmbH, Tele.ring Telekom Service GmbH, successor to TRA 3G Mobilfunk GmbH v Republik Österreich

(Case C-284/04) (1)

(Sixth VAT Directive - Taxable transactions - Definition of ‘economic activity’ - Article 4(2) - Allocation of rights making it possible to use a defined part of the radio-frequency spectrum reserved for telecommunications services)

(2007/C 199/04)

Language of the case: German

Referring court

Landesgericht für Zivilrechtssachen Wien

Parties to the main proceedings

Applicants: T-Mobile Austria GmbH, 3G Mobile Telecommunications GmbH, mobilkom austria Aktiengesellschaft, formerly mobilkom austria AG & Co. KG, master-talk Austria Telekom Service GmbH & Co. KG, ONE GmbH, Hutchison 3G Austria GmbH, tele.ring Telekom Service GmbH, successor to TRA 3G Mobilfunk GmbH

Defendant: Republik Österreich

Re:

Reference for a preliminary ruling — Landesgericht für Zivilrechtssachen Wien — Interpretation of Article 4(5) of and item 1 of Annex D to Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977, L 145, p. 1) — Activities or transactions carried out by a body governed by public law acting as a public authority — Allocation, by auction, of frequencies to mobile telephony operators

Operative part of the judgment

Article 4(2) 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, is to be interpreted as meaning that the allocation, by auction by the national regulatory authority responsible for spectrum assignment, of rights such as rights to use frequencies in the electromagnetic spectrum with the aim of providing the public with mobile telecommunications services does not constitute an economic activity within the meaning of that provision and, consequently, does not fall within the scope of that directive.

(1) OJ C 262, 23.10.2004.

25.8.2007

Official Journal of the European Union

C 199/3

Judgment of the Court (Grand Chamber) of 26 June 2007 (reference for a preliminary ruling from the VAT and Duties Tribunal, London — United Kingdom) — Hutchison 3G UK Ltd, mmO2 plc, Orange 3G Ltd, T-Mobile (UK) Ltd, Vodafone Group Services Ltd v Commissioners of Customs and Excise

(Case C-369/04) (1)

(Sixth VAT Directive - Taxable transactions - Definition of ‘economic activity’ - Article 4(2) - Allocation of licences making it possible to use a defined part of the radio-frequency spectrum reserved for telecommunications services)

(2007/C 199/05)

Language of the case: English

Referring court

VAT and Duties Tribunal, London

Parties to the main proceedings

Applicants: Hutchison 3G UK Ltd, mmO2 plc, Orange 3G Ltd, T-Mobile (UK) Ltd, Vodafone Group Services Ltd

Defendant: Commissioners of Customs and Excise

Re:

Reference for a preliminary ruling — VAT and Duties Tribunal, London — Interpretation of Article 4(1), (2) and (5) 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 (OJ 1977, L 145, p. 1) — Definition of ‘economic activity’ — Activities or transactions carried out by a body governed by public law acting as a public authority — Allocation, by auction, of spectrum to mobile telephony operators

Operative part of the judgment

Article 4(1) and (2) 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 is to be interpreted as meaning that the issuing of licences, such as third generation mobile telecommunications licences known as ‘UMTS’, by auction by the national regulatory authority responsible for spectrum assignment of the rights to use telecommunications equipment does not constitute an economic activity within the meaning of that provision and, consequently, does not fall within the scope of that directive.

(1) OJ C 273, 6.11.2004.

25.8.2007

Official Journal of the European Union

C 199/4

Judgment of the Court (Second Chamber) of 5 July 2007 — Commission of the European Communities v Kingdom of Belgium

(Case C-522/04) (1)

(Failure of a Member State to fulfil obligations - Freedom of movement for persons - Freedom of movement for workers - Freedom to provide services - Freedom of establishment - Free movement of capital - Articles 28, 31, 36 and 40 of the Agreement on the European Economic Area - Directive 2002/83/EC - Tax legislation providing for less favourable treatment of contributions to occupational pension schemes paid to insurance undertakings established abroad - Taxation in Belgium of capital and surrender values paid to beneficiaries who have transferred their residence abroad - Tax convention preventing double taxation - Representative responsible)

(2007/C 199/06)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: R. Lyal and D. Triantafyllou, acting as Agents)

Defendant: Kingdom of Belgium (represented by: E. Dominkovits and M. Wimmer, acting as Agents)

Re:

Failure of a Member State to fulfil its obligations — Breach of Articles 18, 39, 43, 49 and 56 of the EC Treaty, of Articles 28, 31, 36 and 40 of the EEA Agreement, and of Articles 5(1) and 53(2) of Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance (OJ 2002 L 345, p. 1) — Tax legislation providing for less favourable treatment of the contributions to occupational retirement schemes paid to insurance undertakings established abroad, taxation in Belgium of the capital and surrender values paid to recipients who have transferred their residence abroad and the obligation for those undertakings to have a representative residing in Belgium in order to guarantee payment of the annual tax on insurance contracts

Operative part of the judgment

The Court:

—

By making the deductibility of employers' insurance contributions supplementary pension and life assurance subject to the condition, laid down in Article 59 of the Income Tax Code 1992 consolidated by the Royal Decree of 10 April 1992, as amended by the Law of 28 April 2003 on supplementary pensions and the tax regime applying thereto and to certain additional social security advantages, that those contributions be paid to an insurance undertaking or welfare fund established in Belgium;

—

by making the tax reduction for long-term savings, granted by virtue of Articles 145/1 and 145/3 of the Income Tax Code 1992, as amended by the Law of 28 April 2003, for personal supplementary pension and life assurance contributions and premiums paid in the form of deductions made by the employer from the employee's remuneration, or in the form of deductions made by the undertaking from the remuneration of a director who is not under a contract of employment, subject to the condition that those contributions and premiums be paid to an insurance undertaking or welfare fund established in Belgium;

—

by providing, in Article 364a of the Income Tax Code 1992, as amended by the Law of 28 April 2003, that, when capital, surrender values and savings referred to in Article 34 of the Income Tax Code 1992 are paid or allocated to a taxpayer who has previously transferred his residence or the primary location of his assets abroad, the payment or allocation is deemed to have taken place on the day preceding that transfer, and by treating, pursuant to the second paragraph of Article 364a, in the same way as an allocation any transfer referred to in Article 34(2)(3), so that every insurer is under an obligation to withhold amounts in respect of income tax, in accordance with Article 270 of the Code, from capital and surrender values paid to a non-resident who has been, at one time or another, resident for tax purposes in Belgium, in so far as those sums have been built up, entirely, or partially, during the period in which the person concerned was a Belgian resident for tax purposes, even though bilateral tax agreements concluded by the Kingdom of Belgium grant the right to tax such income to another Contracting State;

—

by levying tax, pursuant to Article 364b of the Income Tax Code 1992, as amended by the Law of 28 April 2003, on transfers of capital or surrender values built up by means of employers' contributions or personal contributions for supplementary retirement benefits, where the transfer is made by the pension fund or insurance institution with which the capital or surrender values have been built up in favour of the beneficiary or persons entitled through him, to another pension fund or insurance institution established outside Belgium, while such a transfer does not constitute a taxable transaction if the capital or surrender values are transferred to another pension fund or insurance institution established in Belgium;

—

by requiring, on the basis of Article 224/2a of the General Regulation on taxes assimilated to stamp duty resulting from the Royal Decree of 3 March 1927, as amended by the Royal Decree of 30 July 1994, foreign insurers who have no place of business in Belgium to obtain authorisation, before providing their services in Belgium, for a representative residing in Belgium, who must personally assume, in writing, responsibility towards the State for paying the annual tax on insurance contracts, interest and fines which may be due in respect of contracts relating to risks situated in Belgium,

the Kingdom of Belgium has failed to fulfil its obligations under Articles 18 EC, 39 EC, 43 EC and 49 EC, Articles 28, 31 and 36 of the Agreement establishing the European Economic Area of 2 May 1992 and Article 4 of Council Directive 92/96/EEC of 10 November 1992 on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267/EEC and 90/619/EEC (third life assurance Directive), following revision, Article 5(1) of Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance.

2.	The remainder of the action is dismissed.

3.	The Kingdom of Belgium is ordered to pay the costs.

(1) OJ C 249, 14.10.2006.

25.8.2007

Official Journal of the European Union

C 199/5

Judgment of the Court (Second Chamber) of 5 July 2007 — Commission of the European Communities v Italian Republic

(Case C-255/05) (1)

(Failure of a Member State to fulfil obligations - Assessment of the effects of certain projects on the environment - Waste recovery - Implementation of the ‘third line’ of the Brescia waste incinerator - Publicity for the application for a permit - Directives 75/442/EEC, 85/337/EEC and 2000/76/EC)

(2007/C 199/07)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: M. Konstantinidis, Agent, and F. Louis and A. Capobianco, avocats)

Defendant: Italian Republic (represented by: I.M. Braguglia, Agent, and M. Fiorilli, avvocato dello Stato)

Re:

Failure of a Member State to fulfil obligations — Infringement of Article 2(1) and Article 4(1) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), as amended by Council Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5) — Infringement of Article 12(1) of Directive 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration of waste (OJ 2000 L 332, p. 91) — Consent granted without an assessment of and without making public the prior application for an authorisation — Implementation of a ‘third line’ of waste incineration by ASM di Brescia SpA

Operative part of the judgment

The Court:

Declares that, by not making the project to implement a ‘third line’ of the incinerator belonging to ASM Brescia SpA subject to the environmental impact assessment procedure provided for in Articles 5 to 10 of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997, before consent was given for its construction, the Italian Republic has failed to fulfil its obligations under Articles 2(1) and 4(1) of that directive;

Declares that, by not making the declaration in respect of the commencement of the operations of the ‘third line’ of that incinerator available at one or more locations accessible to the public for an appropriate period, to enable the public to comment on it before the competent authority reached a decision, and by not making the decisions relating to that declaration, including a copy of the authorisation, available to the public, the Italian Republic has failed to fulfil its obligations under Article 12(1) of Directive 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration of waste;

3.	Orders the Italian Republic to pay the costs;

4.	Orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs.

(1) OJ C 205, 20.8.2005.

25.8.2007

Official Journal of the European Union

C 199/6

Judgment of the Court (Grand Chamber) of 26 June 2007 (reference for a preliminary ruling from the Cour constitutionnelle (formerly Cour d'arbitrage) (Belgium)) — Ordre des barreaux francophones and germanophone, Ordre français des avocats du barreau de Bruxelles, Ordre des barreaux flamands, Ordre néerlandais des avocats du barreau de Bruxelles v Conseil des Ministres

(Case C-305/05) (1)

(Directive 91/308/EEC - Prevention of the use of the financial system for the purpose of money laundering - Obligation on lawyers to inform the competent authorities of any fact which might be an indication of money laundering - Right to a fair trial - Professional secrecy and the independence of lawyers)

(2007/C 199/08)

Language of the case: French

Referring court

Cour constitutionnelle (formerly Cour d'arbitrage)

Parties to the main proceedings

Applicants: Ordre des barreaux francophones et germanophone, Ordre français des avocats du barreau de Bruxelles, Ordre des barreaux flamands, Ordre néerlandais des avocats du barreau de Bruxelles

Defendant: Conseil des Ministres

Intervening parties: Conseil des barreaux de l'Union européenne, Ordre des avocats du barreau de Liège

Re:

Reference for a preliminary ruling — Cour constitutionnelle (formerly Cour d'arbitrage) — Validity of Article 1(2) of Directive 2001/97/EC of the European Parliament and of the Council of 4 December 2001 amending Council Directive 91/308/EEC on prevention of the use of the financial system for the purpose of money laundering (OJ 2001 L 344, p. 76) — Right to a fair trial as guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 6(2) of the Treaty on European Union — Principles of professional secrecy and the independence of lawyers — Obligation on lawyers to inform the authorities responsible for the fight against money laundering of any fact which might be an indication of such laundering

Operative part of the judgment

The obligations of information and of cooperation with the authorities responsible for combating money laundering, laid down in Article 6(1) of Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering, as amended by Directive 2001/97/EC of the European Parliament and of the Council of 4 December 2001, and imposed on lawyers by Article 2a(5) of Directive 91/308, account being taken of the second subparagraph of Article 6(3) thereof, do not infringe the right to a fair trial as guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 6(2) EU.

(1) OJ C 243, 1.10.2005.

25.8.2007

Official Journal of the European Union

C 199/6

Judgment of the Court (First Chamber) of 5 July 2007 (reference for a preliminary ruling from the Østre Landsret (Denmark)) — Hans Markus Kofoed v Skatteministeriet

(Case C-321/05) (1)

(Directive 90/434/EEC - Common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares - National decision to tax an exchange of shares - Exchange of shares - Distribution of a dividend shortly afterwards - Abuse of rights)

(2007/C 199/09)

Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: Hans Markus Kofoed

Defendant: Skatteministeriet

Re:

Preliminary ruling — Østre Landsret — Interpretation of Article 2(d) of Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States (OJ 1990 L 225, p. 1) — Exchange of shares followed immediately by a distribution of dividends by the acquiring company, the amount of which exceeds 10 % of the nominal value of the shares exchanged

Operative part of the judgment

In circumstances such as those in the main proceedings, a dividend, such as that paid, is not to be included in the calculation of the ‘cash payment’ provided for in Article 2(d) of Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States and that, accordingly, an exchange of shares such as that in issue constitutes an ‘exchange of shares’ within the meaning of Article 2(d) of that directive.

Consequently, Article 8(1) of Directive 90/434 precludes, in principle, the taxation of such an exchange of shares, unless national rules on abuse of rights, tax evasion or tax avoidance may be interpreted in accordance with Article 11(1)(a) of Directive 90/434 and thus justify the taxation of that exchange.

(1) OJ C 257, 15.10.2005.

25.8.2007

Official Journal of the European Union

C 199/7

Judgment of the Court (First Chamber) of 5 July 2007 — Commission of the European Communities v Kingdom of Denmark

(Case C-327/05) (1)

(Failure of a Member State to fulfil obligations - Directive 85/374/EEC - Liability for defective products - Liability of the supplier for a defective product)

(2007/C 199/10)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: N. Rasmussen, A. Caeiros and H. Støvlbæk, acting as Agents)

Defendant: Kingdom of Denmark (represented by: J. Molde, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Incorrect transposition of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (OJ 1985 L 210, p. 29) — National legislation which makes the distributor of a defective product liable in the same way as the producer

Operative part of the judgment

The Court:

By adopting and maintaining in force provisions which make intermediaries in the distribution chain liable under the same conditions as a manufacturer, contrary to Article 3(3) of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, the Kingdom of Denmark has failed to fulfil its obligations under that directive.

2.	The Kingdom of Denmark is ordered to pay the costs.

(1) OJ C 257, 15.10.2005.

25.8.2007

Official Journal of the European Union

C 199/8

Judgment of the Court (Third Chamber) of 28 June 2007 (reference for a preliminary ruling from the VAT and Duties Tribunal, London — United Kingdom) — JP Morgan Fleming Claverhouse Investment Trust plc, The Association of Investment Trust Companies v The Commissioners of HM Revenue and Customs

(Case C-363/05) (1)

(Sixth VAT Directive - Article 13B(d)(6) - Exemption - Special investment funds - Meaning - Definition by the Member States - Discretion - Limits - Closed-ended funds)

(2007/C 199/12)

Language of the case: English

Referring court

VAT and Duties Tribunal, London

Parties to the main proceedings

Applicants: JP Morgan Fleming Claverhouse Investment Trust plc, The Association of Investment Trust Companies

Defendant: The Commissioners of HM Revenue and Customs

Re:

Interpretation of Art. 13B(d)(6) 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 (OJ 1977 L 145, p. 1) — Scope of the exemption of the management of pooled investment funds — Inclusion of closed-ended funds such as investment trust companies

Operative part of the judgment

Article 13B(d)(6) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as meaning that the words ‘special investment funds’ in that provision are capable of including closed-ended investment funds, such as Investment Trust Companies.

Article 13B(d)(6) of Sixth Directive 77/388 must be interpreted as meaning that it allows Member States a discretion in defining the funds located on their territory which are covered by the notion of ‘special investment funds’ for the purposes of the exemption provided for by that provision. However, in the exercise of that power, the Member States must respect the objective pursued by that provision, which is to facilitate investment in securities for investors through investment undertakings, while guaranteeing the principle of fiscal neutrality from the point of view of the levying of VAT on the management of special investment funds which are in competition with other special investment funds such as funds falling within the scope of Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS), as amended by Directive 2005/1/EC of the European Parliament and of the Council of 9 March 2005.

3.	Article 13B(d)(6) of Sixth Directive 77/388 has direct effect, in that it can be relied on by a taxable person before a national court in order to challenge the application of national legislation alleged to be incompatible with that provision.

(1) OJ C 271, 29.10.2005.

25.8.2007

Official Journal of the European Union

C 199/8

Judgment of the Court (First Chamber) of 5 July 2007 (reference for a preliminary ruling from the Simvoulio tis Epikratias — Greece) — Dionik Anonimi Etairia Emporias I/I, Logismikou & Parokhis Ipiresion Mikhanografisis, Ioannis Mikhail Pikoulas v Epitropi Kefalaiagoras

(Case C-430/05) (1)

(Directive 2001/34/EC - Article 21 - Admission of securities to official stock exchange listing - Listing particulars (prospectus) - Publication of inaccurate information - Persons responsible - Members of the board of directors)

(2007/C 199/13)

Language of the case: Greek

Referring court

Simvoulio tis Epikratias (Council of State)

Parties to the main proceedings

Applicants: Dionik Anonimi Etairia Emporias I/I, Logismikou & Parokhis Ipiresion Mikhanografisis, Ioannis Mikhail Pikoulas

Defendant: Epitropi Kefalaiagoras (Capital Market Commission)

Re:

Reference for a preliminary ruling — Simvoulio tis Epikratias — Interpretation of Article 21 of Directive 2001/34/EC of the European Parliament and of the Council of 28 May 2001 on the admission of securities to official stock exchange listing and on information to be published on those securities (OJ 2001 L 184, p. 1) — Publication of listing particulars containing inaccurate and misleading information liable to deceive investors

Operative part of the judgment

Article 21 of Directive 2001/34/EC of the European Parliament and of the Council of 28 May 2001 on the admission of securities to official stock exchange listing and on information to be published on those securities is to be interpreted as meaning that it does not preclude a national legislature from laying down, for cases where the information recorded in listing particulars published with a view to admitting securities to official stock exchange listing proves to be inaccurate or misleading, administrative penalties imposable not only upon the persons expressly mentioned in those particulars as responsible but also upon the issuer of the securities and, indiscriminately, upon the members of the issuer's board of directors, regardless of whether the board members have been identified as responsible in the listing particulars.

(1) OJ C 60, 11.3.2006.

25.8.2007

Official Journal of the European Union

C 199/9

Judgment of the Court (Third Chamber) of 28 June 2007 (reference for a preliminary ruling from the Tribunale di Milano — Italy) — Criminal proceedings against Giovanni Dell'Orto

(Case C-467/05) (1)

(Police and judicial cooperation in criminal matters - Framework Decision 2001/220/JHA - Directive 2004/80/EC - Concept of ‘victim’ in criminal proceedings - Legal person - Return of property seized in the course of criminal proceedings)

(2007/C 199/14)

Language of the case: Italian

Referring court

Tribunale di Milano

Party in the main proceedings

Giovanni Dell'Orto

joined party: Saipem SpA

Re:

Reference for a preliminary ruling — Tribunale di Milano — Interpretation of Articles 2 and 9 of Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings and Article 17 of Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims (OJ 2004 L 261, p. 15) — Definition of victim including ‘any other persons affected by crime’ — Right to compensation of such persons

Operative part of the judgment

The Court:

Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings must be interpreted as meaning that, in criminal proceedings and, in particular, in enforcement proceedings following a judgment which resulted in a final criminal conviction, such as those in the main action, the concept of ‘victim’ for the purposes of the Framework Decision does not include legal persons who have suffered harm directly caused by acts or omissions that are in violation of the criminal law of a Member State.

(1) OJ C 74, 25.3.2006.

25.8.2007

Official Journal of the European Union

C 199/9

Judgment of the Court (Third Chamber) of 28 June 2007 (reference for a preliminary ruling from the Finanzgericht Hamburg, Germany) — Bonn Fleisch Ex- und Import GmbH v Hauptzollamt Hamburg-Jonas

(Case C-1/06) (1)

(Agriculture - System of export refunds on agricultural products - Regulation (EEC) No 3665/87 - Furnishing of proof of export of the products - Production of equivalent proof - Article 47(3) - Recognition by the authorities of their own motion as equivalent proof of documents not accompanied by an express reasoned request for them to be regarded as equivalent - Not applicable to direct export - National procedural rules - Obligations of the competent national authorities)

(2007/C 199/15)

Language of the case: German

Referring court

Finanzgericht Hamburg

Parties to the main proceedings

Applicant: Bonn Fleisch Ex- und Import GmbH

Defendant: Hauptzollamt Hamburg-Jonas

Re:

Reference for a preliminary ruling — Finanzgericht Hamburg — Interpretation of Article 47(3) of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1987 L 351, p. 1), as amended — Recognition by an authority, of its own motion, of supporting documents not accompanied by an express reasoned request for recognition of equivalence as constituting equivalent proof

Operative part of the judgment

Article 47(3) of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Commission Regulation (EC) No 2955/94 of 5 December 1994, does not apply to the direct export of products.

Where, however, as a result of circumstances beyond the control of the exporter, the national export document proving that the products in question have left the customs territory of the Community cannot be produced, the national authorities competent for export refunds must, in accordance with the objectives of Regulation No 3665/87, as amended by Regulation No 2955/94, take into account of their own motion equivalent means of proof and implied requests for documents to be treated as equivalent. Those means of proof must nevertheless be just as satisfactory for the purpose of the verification in accordance with the detailed rules laid down by national law, provided that those rules respect the scope and effectiveness of Community law.

Where the passing of the deadline for furnishing equivalent means of proof is attributable to the competent national authorities, they cannot rely on the 12-month period laid down by Article 47(2) of Regulation No 3665/87, as amended by Regulation No 2955/94, as against a diligent exporter.

(1) OJ C 74, 25.3.2006.

25.8.2007

Official Journal of the European Union

C 199/10

Judgment of the Court (Fourth Chamber) of 28 June 2007 (reference for a preliminary ruling from the Finanzgericht Köln, Germany) — Planzer Luxembourg Sàrl v Bundeszentralamt für Steuern

(Case C-73/06) (1)

(Sixth VAT Directive - Article 17(3) and (4) - Refund of VAT - Eighth VAT Directive - Refund of VAT to taxable persons not established inside the country - Articles 3(b) and 9, second paragraph - Annex B - Certificate of status as a taxable person - Legal scope - Thirteenth VAT Directive - Refund of VAT to taxable persons not established in Community territory - Article 1(1) - Concept of ‘business’)

(2007/C 199/16)

Language of the case: German

Referring court

Finanzgericht Köln, Germany

Parties to the main proceedings

Applicant: Planzer Luxembourg Sàrl

Defendant: Bundeszentralamt für Steuern

Re:

Reference for a preliminary ruling — Finanzgericht Köln — Interpretation of Art.3(b) of and Annex B to the Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in the territory of the country (OJ 1979 L 331, p. 11) and of Article 1(1) of the Thirteenth Council Directive 86/560/EEC of 17 November 1986 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in Community territory (OJ 1986 L 326, p. 40) — Refund of VAT to a taxable person established in the territory of another Member State which is a subsidiary of a company established in a non-member State — Meaning of ‘his business’ and ‘a fixed establishment from which business transactions are effected’

Operative part of the judgment

Article 3(b) and the second paragraph of Article 9 of the Eighth Council Directive 79/1072/EEC of 6 December 1979 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in the territory of the country must be interpreted as meaning that the certificate in accordance with the specimen in Annex B to that directive does in principle allow the presumption that the person concerned is not only subject to VAT in the Member State whose tax authorities issued it, but also that he is established in that Member State.

Those provisions do not, however, imply that the tax authorities of the Member State in which refund of input VAT is applied for are prohibited, where they have doubts as to the economic reality of the establishment whose address is given in that certificate, from verifying that reality by having recourse to the administrative measures made available for that purpose by Community legislation on VAT.

Article 1(1) of the Thirteenth Council Directive 86/560/EEC of 17 November 1986 on the harmonisation of the laws of the Member States relating to turnover taxes — Arrangements for the refund of value added tax to taxable persons not established in Community territory must be interpreted as meaning that the place of a company's business is the place where the essential decisions concerning its general management are taken and where the functions of its central administration are exercised.

(1) OJ C 201, 7.8.2004.

25.8.2007

Official Journal of the European Union

C 199/11

Judgment of the Court (Third Chamber) of 5 July 2007 (reference for a preliminary ruling from the Commissione tributaria di secondo grado di Trento, Italy) — Fendt Italiana Srl v Agenzia Dogane Ufficio Dogane di Trento

(Case C-145/06 and C-146/06 (1))

(Directive 2003/96/EC - Community framework for the taxation of energy products and electricity - Scope of the directive - Mineral oils - Lubricating oils used for purposes other than as motor fuels or as heating fuels - Not included - Repeal of Directive 92/81/EEC - National taxation scheme)

(2007/C 199/17)

Language of the case: Italian

Referring court

Commissione tributaria di secondo grado di Trento

Parties to the main proceedings

Applicant: Fendt Italiana Srl

Defendant: Agenzia Dogane Ufficio Dogane di Trento

Re:

Reference for a preliminary ruling — Commissione tributaria di secondo grado di Trento — Interpretation of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51) — Compatibility of a national law providing for taxation of lubricating oils intended for use other than as motor fuels or as heating fuels

Operative part of the judgment

Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, as amended by Council Directive 2004/75/EC of 29 April 2004, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which provides for the levying of a tax on the consumption of lubricating oils, where they are intended for use, offered for sale or used other than as motor fuels or as heating fuels.

(1) OJ C 143, 17.6.2006.

25.8.2007

Official Journal of the European Union

C 199/11

Judgment of the Court (Second Chamber) of 5 July 2007 (reference for a preliminary ruling from the Tribunal Administrativo e Fiscal do Porto — Portugal) — Deutsche Lufthansa AG v ANA-Aeroportos de Portugal SA

(Case C-181/06) (1)

(Air transport - Airports - Groundhandling - Levying of a fee for ground administration and supervision)

(2007/C 199/18)

Language of the case: Portuguese

Referring court

Tribunal Administrativo e Fiscal do Porto

Parties to the main proceedings

Applicant: Deutsche Lufthansa AG

Defendant: ANA — Aeroportos de Portugal SA,

Re:

Reference for a preliminary ruling — Tribunal Administrativo e Fiscal — Interpretation of Article 16(3) of Council Directive 96/67/EC of 15 October 1996 on access to the groundhandling market at Community airports (OJ 1996 L 272, p. 36) — Access to the groundhandling market at Community airports — Levying of a fee for access to the market in ground administrative assistance and supervision services

Operative part of the judgment

Community law precludes rules of national law such as those provided for by Article 10(1) of Decree No 12/99 of 30 July 1999, and Article 18(2) of Decree-Law No 120/90 of 21 March 1990, as amended by Decree-Law No 280/99 of 26 July 1999, unless the fee for ground administration and supervision provided for by that legislation is payable as the consideration for some or all of the services defined in paragraph 1 of the Annex to Council Directive 96/67/EC of 15 October 1996 on access to the groundhandling market at Community airports and does not constitute a second charge for services already paid for through another fee or tax. If the examination carried out by the referring court discloses that the fee at issue in the main proceedings constitutes a fee for access to the airport installations, it is a matter for that court to ascertain whether the fee at issue meets the criteria of relevance, objectivity, transparency and non-discrimination as specified in Article 16(3) of Directive 96/67.

(1) OJ C 154, 1.7.2006.

25.8.2007

Official Journal of the European Union

C 199/12

Judgment of the Court (Seventh Chamber) of 5 July 2007 — Commission of the European Communities v Kingdom of Spain

(Case C-317/06) (1)

(Failure of Member State to fulfil obligations - Directive 2002/14/EC - Informing and consulting employees in the European Community - Failure to transpose within the period prescribed)

(2007/C 199/19)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: J. Enegren and R. Vidal Puig, acting as Agents)

Defendant: Kingdom of Spain (represented by: M. A. Sampoll Pucurull, agent)

Re:

Failure of Member State to fulfil obligations — Failure to take, within the period prescribed the measures necessary to comply with Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community — Joint declaration of the European Parliament, the Council and the Commission on employee representation (OJ 2002 L 80, p. 29)

Operative part of the judgment

The Court:

Declares that, by not having adopted, within the period prescribed, the laws, regulations and administrative measures necessary to comply with Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community, the Kingdom of Spain has failed to fulfil its obligations under that directive;

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

(1) OJ C 212, 2.9.2006.

25.8.2007

Official Journal of the European Union

C 199/12

Judgment of the Court (Sixth Chamber) of 5 July 2007 — Commission of the European Communities v Republic of Austria

(Case C-340/06) (1)

(Failure of a Member State to fulfil obligations - Directive 2003/4/EC - Public access to environmental information - Failure to transpose within the period prescribed)

(2007/C 199/20)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: U. Wölker, acting as Agent)

Defendant: Republic of Austria (represented by: E. Riedl, acting as Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to have adopted within the period prescribed all the provisions necessary to transpose Directive 2003/4/EC 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 (OJ 2003 L 41, p. 26)

Operative part of the judgment

The Court:

By not adopting within the period prescribed all the laws, regulations and administrative provisions necessary to transpose Directive 2003/4/EC 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, the Republic of Austria has failed to fulfil its obligations under that directive.

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

(1) OJ C 249, 14.10.2006.

25.8.2007

Official Journal of the European Union

C 199/13

Judgment of the Court (Seventh Chamber) of 28 June 2007 — Commission of the European Communities v Portuguese Republic

(Case C-410/06) (1)

(Failure of Member State to fulfil obligations - Directive 2002/15/EC - Organisation of the working time of persons performing mobile road transport activities - Failure to transpose within the period prescribed)

(2007/C 199/21)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: N. Yerrell and G. Braga da Cruz, acting as agents)

Defendant(s): Portuguese Republic (represented by: L. Fernandes and F. Ribeiro agents)

Re:

Failure of Member State to fulfil obligations — Failure to take within the prescribed period the necessary measures to comply with Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities (OJ 2002 L 80, p. 35)

Operative part of the judgment

The Court:

Declares that, by failing to adopt within the period prescribed all the laws regulations and administrative provisions necessary to comply with Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities, the Portuguese Republic has failed to fulfil its obligations under that directive;

2.	Orders the Portuguese Republic to pay the costs.

(1) OJ C 294, 2.12.2006.

25.8.2007

Official Journal of the European Union

C 199/13

Order of the Court of 15 May 2007 — Ricosmos BV v Commission of the European Communities

(Case C-420/05 P) (1)

(Appeal - Customs code - External Community transit operation - Remission of import duties - Conditions - Compliance with time-limits - Compliance with the rights of the defence - Principle of proportionality - Notion of manifest negligence - Appeal manifestly inadmissible in part and manifestly unfounded in part)

(2007/C 199/22)

Language of the case: Dutch

Parties

Applicant: Ricosmos BV (represented by: J.H. Peek, advocaat)

Other party to the proceedings: Commission of the European Communities (represented by: B. Stromsky and M. van Beek, acting as Agents)

Re:

Appeal brought against the judgment of the Court of First Instance (First Chamber) of 13 September 2005 in Case T-53/02 Ricosmos v Commission, by which the Court of First Instance dismissed the application for annulment of Commission Decision REM 09/00 of 16 November 2001 informing the Netherlands authorities that there were no grounds for remission of import duties in respect of a consignment of cigarettes intended for the Czech Republic on the ground that fraud committed by third parties in the course of an external Community transit operation does not constitute a special situation justifying remission of the import duties

Operative part of the order

1.	The appeal is dismissed.

2.	Ricosmos BV is ordered to pay the costs.

(1) OJ C 48, 25.2.2006.

25.8.2007

Official Journal of the European Union

C 199/14

Order of the Court (Fifth Chamber) of 23 May 2007 (reference for a preliminary ruling from the Sozialgericht Würzburg, Germany) — Otmar Greser v Bundesagentür für Arbeit

(Case C-438/06) (1)

(Preliminary reference - Manifest inadmissibility)

(2007/C 199/23)

Language of the case: German

Referring court

Sozialgericht Würzburg, Germany

Parties

Applicant: Otmar Greser

Defendant: Bundesagentür für Arbeit

Re:

Reference for a preliminary ruling — Sozialgericht Würzburg — Interpretation of Article 71(1)(b) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416) — Calculation of the unemployment benefits of a boatman on the Rhein (‘Rheinschiffer’) who was resident, during his last period of employment, on the territory of a Member State other than the State of employment and returned, in accordance with his contract of employment, only every second week to his place of residence — Classification of that worker as ‘a frontier worker’ or ‘a worker, other than a frontier worker’

Operative part of the order

The reference for a preliminary ruling made by the Sozialgericht Würzburg by decision of 28 September 2006 is manifestly inadmissible.

(1) OJ C 326, 30.12.2006.

25.8.2007

Official Journal of the European Union

C 199/14

Action brought on 5 April 2007 — Commission of the European Communities v Republic of Poland

(Case C-193/07)

(2007/C 199/25)

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by: D. Recchia and K. Herrmann, acting as Agents)

Defendant: Republic of Poland

Form of order sought

—

Declare that, by failing to take appropriate measures to avoid deterioration in the habitats and significant disturbance to the species in the SPA Puszcza Augustowska, PLB 200002, in the context of the approval procedures for the bypass around Augustów, a town in the north-east of its territory, the Republic of Poland has failed to fulfil its obligations under Article 6(2) and (7) of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (1);

—

Declare that, by failing to submit the project for the bypass around Wasilków, a town in the north-east of its territory, to due assessment of the impact of the project on the SPA Puszcza Knyszyńska, PLB 200003, and by approving that project despite its adverse impact on the integrity of the area in question and by starting work on that project, the Republic of Poland has failed to fulfil its obligations under Article 6(3) and (7) of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora;

—

Declare that, by proposing to carry out an afforestation project as a compensatory measure for the loss of the Puszcza Augustowska area, PLB 200002, over the area which is to be proposed as a site of Community [Importance] in accordance with Directive 92/43/EEC (‘Pojezierze Sejneńskie’, PLH 200007, of a total surface area of 7 456,9 ha), the Republic of Poland has infringed the provisions of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora in the light of the judgments delivered by the Court in Cases C-117/03 Dragaggi and C-244/05 Bund Naturschutz;

—

Declare that, by approving the destruction of the habitat Puszcza Augustowska inside an area which is to be proposed as a Site of Community Importance in accordance with Directive 92/43/EEC (Ostoja Augustowska PLH 200005) in the context of the construction of the bypass around Augustów, a town in the north-east of its territory, the Republic of Poland has infringed the provisions of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora in the light of the judgments delivered by the Court in the Cases C-117/03 Dragaggi and C-244/05 Bund Naturschutz;

—	order the Republic of Poland to pay the costs.

Pleas in law and main arguments

The present action concerns incorrect application of Directives 79/409/EEC (2) (Birds) and 92/43/EEC (Habitats). The Habitats Directive aims to create a coherent European ecological network in order to promote the maintenance of or reestablishment to a suitable state of conservation of natural habitats and wild fauna and flora on the territory of the Member States. In order to achieve that objective, provision is made, inter alia, for the classification of special protection areas (‘SPAs’). Article 6(2) of the above directive requires the Member States to take appropriate measures to avoid, by any of their acts, the deterioration of sites and significant disturbance to the species for which sites were classified, while Article 6(3) provides that the Member States are required to submit any plan or project not directly linked or necessary to the management of a site but liable significantly to affect that site to due assessment of its impact on the site having regard to the conservation objectives of that site.

Poland is in the process of carrying out two road projects to bypass the towns of Augustów and Wasilków inside protected areas within the meaning of the abovementioned directives, in breach of Article 6(2) and (3), in conjunction with Article 7, of the Habitats Directive with regard to two Special Protection Areas (SPAs) and in breach of the system of protection which follows from the case-law in Dragaggi (C-117/03) and Bund Naturschutz (C-244/05) with regard to a potential site of Community importance (SCI). In addition, Poland has proposed a compensatory measure for the ecological losses suffered because of the implementation of the project for a bypass, to be built on a potential Site of Community Important (SCI), which is likely to harm the ecological features of that site, around the town of Augustów.

With regard to the road project to bypass of the town of Augustów, its route is intended to cross the SPA Puszcza Augustowska and the potential SCI Ostoja Augustowska. The SPA forms the habitat of 41 species of birds listed in Annex I to the Birds Directive, while the site of Ostoja Augustowska contains 21 types of habitat listed in Annex I to the Habitats Directive. Furthermore, the latter site is the habitat of nine animal species and eight plant species listed in Annex II to the Habitats Directive, including a priority species, that is to say the wolf. The site of Ostoja Augustowska meets all the ecological criteria of Annex III of the Habitats Directive for proposal and subsequent classification as an SCI under that directive.

With regard to the scheme applicable to that project and to its impact on the SPA, it should be noted that its authorisation procedure began before the date of accession of Poland. The Commission takes the view, in accordance with the ruling in Case C-209/04 Commission v Austria, that the provisions of Article 6(3) and (4) of the Habitats Directive do not apply. However, the substantive provisions of that directive, in particular Article 6(2), apply from the time of accession. With regard to that project and its impact on the potential SCI, the Commission takes the view that their legal scheme does not differ from that indicated in the judgments in Dragaggi and Bund Naturschutz, the requirements for protection being identical. Moreover, that scheme applies from the time of accession of Poland to the European Union because it constitutes substantive obligations relating to the objective of the Habitats Directive; if the opposite were the case the result would be that the Member States would not be bound by the objectives of the Directive with regard to projects whose authorisation procedure had begun before the date of accession.

The project in question damages habitats, disturbs species for which the SPA was classified and does not constitute a measure liable to safeguard the interests of the potential SCI at a national level. The project will cause irreversible harm and will lead to deterioration of the unique and exceptional ecosystem of the valley of the Rospuda river in terms of its impact on birds, habitats and species in need of protection within the meaning of Directives 79/409/EEC and 92/43/EEC. It must be noted that, at the time of the impact assessment of the Augustów bypass project on the Natura 2000 areas, the Polish authorities did not take appropriate account of alternative solutions. By having failed to show the lack of alternative solutions, the Polish authorities cannot rely on an overriding public interest in order to approve the project in question.

With regard to the road project to bypass of the town of Wasilków, its route is intended to cross the SPA Puszcza Knyszyńska which forms the habitat of 37 species of birds listed in Annex I of the Birds Directive. The authorisation procedure began before the accession of Poland to the European Union, and thus it is a project to which the procedural provisions in Article 6(3) and (4) apply. The impact assessment carried out for that project is defective from a number of points of view and does not constitute due assessment of the impact under Article 6(3) of the Habitats Directive. Furthermore, it must also be noted that the Polish authorities did not submit alternative solutions to the Wasilków bypass to the Commission and did not raise the question of compensatory measures with regard to the area which will be destroyed by that bypass.

The work has already begun; in particular, trees have already been felled.

The afforestation project to be carried out in the potential SCI of Pojezierze Sejneńskie as a compensatory measure for the ecological losses suffered in the areas affected by the Augustów bypass project not only fails to compensate for the ecological losses but also implies an adverse impact on the potential SCI. The site, which contains 15 types of habitat listed in Annex I to the Habitats Directive, meets all the ecological criteria of Annex III for proposal and subsequent classification as an SCI under that directive. The Commission has reliable information that two species included in Annexes II and IV to the abovementioned directive, that is to say the species Pulsatilla patens and the species Thesium ebracteatum, are present in that area. Furthermore, the area forms the habitat of six animal species and six plant species listed in Annex II to the Habitats Directive, including a priority species, that is to say the wolf. Part of the area of that priority habitat (approximately 17 hectares) and the habitats of two plant species listed in Annex II will be deforested as part of the measures envisaged by the project investor to compensate for the damage to the habitats caused by the construction of the Augustów bypass.

The Polish authorities have confirmed that they wish to complete this afforestation project by the end of next June at the latest. The Commission requests the Court to order that the work be suspended or that it not begin until delivery of the judgment in the main proceedings.

(1) OJ L 206, 22.7.1992, p. 7.

(2) Directive 79/409/EEC on the conservation of wild birds (OJ L 103, 25.4.1979, p. 1).

25.8.2007

Official Journal of the European Union

C 199/16

Action brought on 8 May 2007 — Commission of the European Communities v Republic of Poland

(Case C-227/07)

(2007/C 199/26)

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by: M. Shotter and K. Mojzesowicz, Agents)

Defendant: Republic of Poland

Form of order sought

The applicant claims that the Court should:

—

declare that, by failing to transpose correctly into national law Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (1) and, in particular, Article 4(1) thereof relating to an obligation to negotiate interconnection with each other, and the first subparagraph of Article 5(1) thereof relating to the power of the national regulatory authority to encourage and where appropriate ensure, in accordance with the directive's provisions, adequate access and interconnection, and interoperability of services, the Republic of Poland failed to fulfil its obligations under that directive;

—	order the Republic of Poland to pay the costs.

Pleas in law and main arguments

Directive 2002/19/EC of the European Parliament and of the Council (Access Directive) provides that operators of public communications networks are to have a right and obligation to negotiate interconnection with each other for the purpose of providing publicly available electronic communications services, in order to ensure provision and interoperability of services throughout the Community. It also requires that the national regulatory authorities have power to encourage and where appropriate to ensure, in accordance with the directive's provisions, adequate access, interconnection and interoperability of services.

As regards the Republic of Poland, the period for transposing that directive expired, under the combined provisions of Articles 2 and 54 of the Act of Accession, on 30 April 2004.

Under Polish law, all operators of public communications networks are bound to negotiate access and the national regulatory authority may impose a time-limit for such negotiations to be concluded. In addition, if the parties do not reach an agreement, the national regulatory authority may, at the request of one of the parties, adopt a decision which will replace the contract and thus impose obligations on undertakings irrespective of their position on the market. The Commission claims that those provisions of Poland's law on telecommunications do not comply with the requirements of Article 4(1) and the first subparagraph of Article 5(1) of the Access Directive.

As regards the introduction, in general legal provisions, of an obligation to negotiate access contracts in good faith, the effect of that solution is to impose the obligation to negotiate without first establishing a lack of effective competition on the market concerned, and does not enable the national regulatory authority to examine the impact of the obligation to grant access on long term competition on that market and, consequently, to suppress that obligation if competition on the market intensifies.

As regards the national regulatory authority's power to adopt a decision which will replace the parties' contract, it is important to note that the first subparagraph of Article 5(1) of the Access Directive cannot be implemented by a general legal provision because it requires that a national regulatory authority be empowered to act only in certain circumstances. The power conferred on national regulatory authorities by virtue of the above-mentioned provision of the directive is clearly limited, first, by the reference to the ‘objectives set out in Article 8 of Directive 2002/21/EC (2) (Framework Directive)’ and, second, by the requirement laid down in Article 5(3) of the Access Directive. Those limits on the national regulatory authority's power ensure that it will act only in certain well defined circumstances. In addition, the regulatory obligations may be imposed only on undertakings having significant power on the market or, irrespective of the undertaking's power on the market, in the circumstances mentioned in Article 8(3) of the Access Directive. It follows that if the national regulatory authority decides to intervene, such intervention must have the directive's provisions as its legal basis, including when the national regulatory authority decides to impose regulatory obligations.

(1) OJ 2002, L 108, p. 7.

(2) Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications and services (Framework Directive) (OJ 2002, L 108, p. 33, and OJ, Polish Special Edition, Chapter 13, Vol. 29, p. 349).

25.8.2007

Official Journal of the European Union

C 199/17

Appeal brought on 22 May 2007 by Carsten Brinkmann against the judgment of the Court of First Instance (Fifth Chamber) delivered on 22 March 2007 in Case T-322/05 Carsten Brinkmann v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-243/07 P)

(2007/C 199/27)

Language of the case: German

Parties

Appellant: Carsten Brinkmann (represented by: K. van Bebber, lawyer)

Other parties to the proceedings:

1.	Office for Harmonisation in the Internal Market (Trade Marks and Designs)

2.	Terra Networks, S.A.

Form of order sought

—	set aside the judgment of the Court of First Instance (Fifth Chamber) of 22 March 2007 in Case T-322/05;

—	annul Decision No 3646/2004 of the Office for Harmonisation in the Internal Market (OHIM) of 29 October 2004;

—	order OHIM to pay the costs of the proceedings before OHIM and also of the proceedings before the Court of First Instance and the Court of Justice.

Pleas in law and main arguments

The appellant's appeal against the judgment of the Court of First Instance referred to above is based on an infringement of the provisions of Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark since, on a correct assessment, there is no likelihood of confusion within the meaning of Article 8(1)(b) of the Regulation between the conflicting marks.

First, it is not the case that the goods and services covered by the trade mark applied for and those covered by the opposing mark are completely identical.

Second, the members of the public concerned are professionals, namely banking experts, property owners etc, rather than the average German consumer.

Third, the ‘terra’ element of the opponent's mark is not very distinctive. The Court of First Instance failed to take any account at all of that crucial aspect. It failed to consider the distinctiveness of the opposing mark. That is important, however, because if the earlier mark is not very distinctive, there is no likelihood of confusion in circumstances where, as a rule, such a likelihood would otherwise exist. The less distinctive a sign, the lesser the scope of protection of the mark. Where trade marks are not very distinctive, a likelihood of confusion in legal terms cannot be based on even an actual (and extreme) likelihood of confusion.

Fourth, the similarity of the signs depends on the similarity in figurative, aural and conceptual terms, with reliance being placed on the overall impression in each case, although the distinctive and dominant elements must be taken into account. The opposing mark is a figurative mark, consisting of the word ‘terra’ and a figurative element that is approximately the same size as the word element ‘terra’. The mere fact that the contested trade mark has no figurative element means that clear differences can be seen on an overall comparison of the marks. However, even if the word element ‘terra’ is assumed to dominate the opposing mark, there is no relevant similarity for the purposes of trade mark law. It must be emphasised that the term ‘terra’, which is well-known, conceptually, to the public, is indeed incorporated in its entirety into the fanciful word ‘Terranus’. However, the ‘terra’ sign has no independent, distinctive position in the ‘Terranus’ mark. Furthermore, the public is accustomed to the fact that terms which are derived from a certain root can acquire an entirely different meaning as a result of a variation, thereby losing any conceptual connection with the original term.

25.8.2007

Official Journal of the European Union

C 199/18

Reference for a preliminary ruling from the Rechtbank van Koophandel te Antwerpen (Belgium) lodged on 1 June 2007 — VTB-VAB NV v Total Belgium NV

(Case C-261/07)

(2007/C 199/28)

Language of the case: Dutch

Referring court

Rechtbank van Koophandel te Antwerpen

Parties to the main proceedings

Applicant: VTB-VAB NV

Defendant: Total Belgium NV

Question referred

Does Directive 2005/29 (1) of the European Parliament and of the Council concerning unfair commercial practices preclude a national provision such as Article 54 of the Belgian Law of 14 July 1991 on commercial practices, consumer information and consumer protection, which, subject to the exhaustive list of exceptions contained within that Law, prohibits any collateral offer by a seller to a consumer, including an offer in which goods which the consumer has to buy are tied to a free service, the acquisition of which is linked to the purchase of the goods, notwithstanding the circumstances of individual cases, in particular notwithstanding the possible influence of the actual offer on the average consumer, or whether, in the actual circumstances, that offer may be regarded as contravening the professional duty of care and genuine commercial custom?

(1) Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22).

25.8.2007

Official Journal of the European Union

C 199/19

Action brought on 6 June 2007 — Commission of the European Communities v Federal Republic of Germany

(Case C-269/07)

(2007/C 199/30)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: R. Lyal and W. Mölls, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

—

Declare that the Federal Republic of Germany has failed to fulfil its obligations under Article 39 EC, Article 7 of Council Regulation No 1612/68 of 15 October 1968 (1), Article 18 EC and Article 12 EC by introducing and maintaining the provisions for second pillar pensions in Paragraphs 79 to 99 of the Einkommensteuergesetz (Law on Income Tax), in so far as those provisions

(a)	deny cross-border workers (and their spouses) the right to an allowance, unless they are fully liable to tax;

(b)	do not permit the capital advanced to be used for an apartment serving as the recipient's own residence in the recipient's own house, unless that house is in Germany;

(c)	require the repayment of financial support on termination of liability to unlimited taxation;

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

Pleas in law and main arguments

In 2001, Germany introduced the ‘supplementary pension allowance’ which was intended to encourage the building up of second pillar pensions to compensate for the reduction in the level of the state pension. However, that allowance is granted only if the person concerned is fully liable to tax in Germany, which, certainly as far as cross-border workers are concerned (who are liable to be taxed by the State of residence under a double taxation convention, and who do not therefore pay taxes in Germany), deprives them of the benefit of the allowance. In addition, it is possible to use part of the accumulated capital for the purchase of residential property, but only of property that is situated in Germany, not property that is near the border but abroad. Finally, the allowance is repayable if the person concerned ceases to be fully liable to tax.

In the Commission's opinion, those provisions infringe Community law prohibiting discrimination based on nationality and Community law on the free movement of workers, or rather, on the equal treatment — in terms of social and tax advantages — of workers from other Member States. The prohibition on discrimination against workers from other Member States based on nationality includes not only overt discrimination based on nationality, but also covert forms of discrimination which would in fact produce the same result if other distinguishing criteria were applied. Furthermore, it is clear from the case-law of the Court of Justice that cross-border workers too are entitled to social advantages under Article 7(2) of Regulation No 1612/68.

Since the supplementary pension allowance is within the definition of a ‘social advantage’, it should also be granted where cross-border workers and/or their spouses are not subject to taxation in Germany at all, because the advantage attaches to the objective status of the persons concerned as employed persons. The state pension, which is being reduced and the supplementation of which is therefore being promoted, primarily applies to employed persons, although it may apply incidentally to other categories of persons also. Furthermore, ‘social advantage’ also covers advantages which are bestowed upon recipients merely by virtue of the fact that their place of residence is within the country. It is clear therefore that frontier workers are, as a rule, in the same position as resident employees; both categories are affected by falling pension rates in the German system to which they are linked and to which they have paid contributions. Both have an interest in building up an additional pension during their active working lives to counteract falling pension rates. The German legislation, which precludes frontier workers whose income is subject to taxation by the State of residence under a double taxation convention from claiming the advantage, thus amounts to covert discrimination and, accordingly, infringes Article 39(2) EC and Article 7(2) of Regulation No 1612/68. Whether the supplementary pension allowance is categorised as a ‘tax’ or ‘social’ advantage is ultimately unimportant, since cross-border workers are entitled to equal treatment in respect of ‘tax’ advantages too.

The notion that what is at issue is a social advantage applies equally to the prohibition on spending the capital advanced on an apartment serving as the recipient's own residence in the recipient's own house (unless it is in Germany). Even if it were not a tax advantage, the freedom of movement for workers would still be infringed, since the opportunity to avail oneself of a social advantage is restricted by that requirement. It makes it impossible for cross-border workers to spend the capital saved on an apartment that is situated nearby but abroad, as such employees would normally be expected to do. A typical frontier worker has less flexibility than domestic employees in the use of the allowance when a contractual pension comes to be paid out. The value of that allowance as a social advantage is thereby reduced. Putting frontier workers at a disadvantage in this way also, therefore, represents covert discrimination based on nationality, which is an infringement of Article 39(2) EC and Article 7(2) of Regulation No 1612/68.

The repayment obligation on termination of liability to unlimited taxation that is provided for under German legislation primarily affects foreigners, since the number of foreigners returning to their country of origin after the end of their working lives is much higher than the number of German pensioners moving abroad. Furthermore, the repayment obligation deters those concerned from changing their place of residence to another Member State. Moreover, the legislation at issue here can reduce the value of the allowance for migrant workers from the outset, as against domestic employees, and thus entail covert discrimination at the very point at which the advantage is granted. That applies to those cases in which a migrant worker wishes from the outset to avoid repayment and consequently does not even apply for the allowance. There appears to be no justification for that either. As regards fiscal cohesion, that is already assured by the provisions of double taxation conventions. The repayment obligation on termination of liability to unlimited taxation also therefore represents covert discrimination based on nationality, and consequently infringes Article 39 EC, Article 7(2) of Regulation No 1612/68 and Articles 12 EC and 18 EC.

(1) OJ, English Special Edition I 1968(II), p. 475.

25.8.2007

Official Journal of the European Union

C 199/20

Action brought on 6 June 2007 — Commission of the European Communities v Federal Republic of Germany

(Case C-270/07)

(2007/C 199/31)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: F. Erlbacher and A. Szmytkowska, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

—

Declare that the Federal Republic of Germany has failed, or is continuing to fail, to fulfil its obligations under Article 1 and Article 5(3) and (4) of Directive 85/73 (1) and — as from 1 January 2007 — under Article 27(2), (4) and (10) of Regulation No 882/2004 (2) by failing to amend Paragraph 4 of the Ausführungsgesetz zum Fleischhygienerecht und zum Geflügelfleischrecht (Law on the implementation of the meat hygiene and poultrymeat laws) of the Land of Schleswig-Holstein to conform to those Community rules.

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

Pleas in law and main arguments

Under Article 1(1) of Directive 85/73/EEC, the Member States are to ensure that fees are collected for the costs occasioned by the health controls and inspections of meat provided for under the various directives. The detailed rules for the calculation and collection of those Community fees, which are to replace any other charge or fee for health inspections and controls that is collected by the State, regional or local authorities of the Member States, are set out in the annexes to the Directive. Article 5(1) of Directive 85/73 provides that the Community fees are to be set at a level which covers the costs borne by the competent authority in carrying out the controls and inspections. According to Article 5(3), the Member States are to be authorised to charge a greater amount, provided that the total fees charged by each Member State do not exceed the actual cost of inspection. In its judgment in Joined Cases C-284/00 and C-288/00 Stratmann, the Court has already determined that it is clear from the wording and purpose of Directives 85/73 and 64/433 that the costs of bacteriological examinations are covered by the Community fee. The legal position remains substantially unchanged following the replacement of Directive 85/73 by Regulation No 882/2004 with effect from 1 January 2007.

The Commission takes the view that the provisions of the Ausführungsgesetz (Law on Implementation) of the Land Schleswig-Holstein, which provide for the collection of fees for bacteriological examinations in addition to the flat-rate fees for meat inspections, do not comply with those Community law provisions and fail to take account of the Court's interpretation of those provisions in Stratmann.

In particular, it should be noted that bacteriological examinations are included in the health inspections and controls provided for in Regulation No 854/2004, the costs of which are to be covered by the Community fee. Although the Member States can collect a greater fee than is laid down in the annex to Directive 85/73/EEC, provided that the total fees charged by each Member State do not exceed the actual cost of inspection, every increase imposed by a Member State must apply to the flat-rate fee itself. Special fees exceeding the level of the Community fee must cover all of the costs actually incurred. That provision for higher costs cannot be said to apply to a rule of domestic law which provides for the costs of bacteriological examinations to be charged in addition to the flat-rate fees, as that is not a general increase in the flat-rate Community fee, which incorporates all of the costs actually incurred.

A provision such as the rule of the Ausführungsgesetz of the Land Schleswig-Holstein in the present case also runs counter to the relevant Community rules' practical effectiveness. These harmonised provisions are, after all, intended to eliminate the distortion of competition in the financing of health inspections and controls of fresh meat which is to be expected where there are differences between the Member States in that area. The Court of Justice took the view also that this objective might not be achieved if certain inspections laid down by Community law could fall outside that harmonised system of Community financing and instead be subject to special national fees.

(1) OJ 1985 L 32, p. 14.

(2) OJ 2004 L 165, p. 1.

25.8.2007

Official Journal of the European Union

C 199/21

Action brought on 8 June 2007 — Commission of the European Communities v Italian Republic

(Case C-275/07)

(2007/C 199/32)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: G. Wilms and M. Velardo, Agents)

Defendant: Italian Republic

Form of order sought

The applicant claims that the Court should:

—

declare that, by

—

having refused to pay the Commission default interest totalling EUR 847.06 in respect of delay in entering customs entitlements in the accounts and having refused to bring national provisions into line with Community rules concerning entry in the accounts of uncontested customs operations covered by comprehensive security in respect of a Community transit operation, and

—	having refused to pay the Commission default interest totalling EUR 3 322 concerning failure to comply within the time limits prescribed by Community rules in respect of entry in ‘A’ accounts of customs entitlements in the field of transit operations as provided for in the TIR convention,

the Italian Republic has failed to fulfil its obligations under 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 (1) and, in particular, Article 6(2)(a) thereof, replaced as from 31 May 2000 by 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 (2) and, in particular, Article 6(3)(a) thereof.

—	order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Commission challenges two decisions of the Italian Republic. The first is its refusal to pay the Commission default interest of EUR 847.06 in respect of delay in entering customs entitlements in the accounts and having refused to bring national provisions into line with the Community rules concerning entry in the accounts of uncontested customs operations covered by comprehensive security in respect of a Community transit operation. The second is its refusal to pay the Commission default interest totalling EUR 3 322 concerning failure to comply within the time limits prescribed by Community rules in respect of entry in ‘A’ accounts of customs entitlements in the field of transit operations as provided for in the TIR convention.

In support of the action, the applicant submits that the Italian Republic, in addition to having infringed Articles 8 and 11 of Regulation No 1552/89, has failed to fulfil its obligations under Article 6(2)(a), replaced as from 31 May 2000 by Regulation No 1150/2000 implementing Decision 94/728/EC, Euratom on the system of the Communities' own resources and, in particular, Article 6(3)(a) thereof.

(1) OJ L 155 of 7.6.1989, p. 1.

(2) OJ L 130 of 31.5.2000, p. 1.

25.8.2007

Official Journal of the European Union

C 199/22

Action brought on 12 June 2007 — Commission of the European Communities v Italian Republic

(Case C-283/07)

(2007/C 199/34)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: C. Zadra and J.-B. Laignelot, acting as Agents)

Defendant: Italian Republic

Form of order sought

—

declare that, by adopting and maintaining in force provisions such as

—	Article 1(25) to (27) and (29)(a) of Law No 308 of 15 December 2004, and

—	Article 1(29)(b) of Law No 308 of 15 December 2004 and Articles 183(1)(s) and 229 of Legislative Decree No 152 of 3 April 2006,

in accordance with which scrap intended for use in iron and steel and metallurgical activities and high-quality refuse derived fuel (RDF-Q) respectively are immediately removed from the scope of the Italian legislation on waste transposing Council Directive 75/442/EEC of 15 July 1975 on waste (1), as amended by Council Directive 91/156/EEC of 18 March 1991, (2) the Italian Republic has failed to fulfil its obligations under Article 1(a) of that directive;

—	order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Commission pleads, in the light of the case-law of the Court, that the provisions laid down in Article 1(25) to (27) and (29) of Law No 308 and Articles 183(1)(s) and 229 of Legislative Decree No 152, in accordance with which scrap intended for use in iron and steel activities and high-quality refuse derived fuel (RDF-Q) are systematically and without more excluded from the definition of waste, have the effect of unduly restricting the definition of waste provided for in Directive 75/442 and consequently the scope of that directive, necessarily detrimental to its practical effect. Such provisions are therefore contrary to the directive itself, from which a provision of national law cannot derogate, and which does not provide for any exclusion from its scope for those objects and substances.

The exclusion from the definition of waste of scrap intended for use in iron and steel activities and of RDF-Q is laid down by the Italian legislature though the unrebuttable presumption that such objects and substances, as defined in the provisions in question, must always be categorised as raw materials. Such provision unavoidably restricts the dynamic and functional definition provided for by the directive. It precludes the existence of ‘waste’ within the meaning of Directive 75/442 from being ‘determined in the light of all of the circumstances’ which ought, case by case, to establish whether there is waste within the meaning of the directive.

The systematic exclusion of such residual materials from the scope of the directive is not only detrimental to the practical effect of the directive and, in particular, of the system for monitoring waste management introduced by it to protect the environment, but results in precluding those residual materials from the application of all the environmental legislation the scope of which is specifically defined by reference to the definition of waste laid down in the directive. The potential detrimental effects to the environment of such an exclusion therefore go well beyond those deriving from the non-application of the directive alone.

(1) OJ L 194 of 25.7.1975, p. 47.

(2) OJ L 78 of 26.3.1991, p. 32.

25.8.2007

Official Journal of the European Union

C 199/23

Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 14 June 2007 — The Commissioners of Her Majesty's Revenue & Customs v Isle of Wight Council, Mid-Suffolk District Council, South Tyneside Metropolitan Borough Council, West Berkshire District Council

(Case C-288/07)

(2007/C 199/35)

Language of the case: English

Referring court

High Court of Justice (Chancery Division)

Parties to the main proceedings

Applicant: The Commissioners of Her Majesty's Revenue & Customs

Defendants: Isle of Wight Council, Mid-Suffolk District Council, South Tyneside Metropolitan Borough Council, West Berkshire District Council

Questions referred

Is the expression ‘distortions of competition’ to be ascertained on a public body by public body basis such that, in the context of the present case, it should be determined by reference to the area or areas where the particular body in question provides off-street parking or by reference to the totality of the national territory of the Member States?

2.	What is meant by the expression ‘would lead to’? In particular, what degree of probability or level of certainty is required for that condition to be satisfied?

3.	What is meant by the word ‘significant’? In particular, does ‘significant’ mean an effect on competition that is more than trivial or de minimis, a ‘material’ effect or an ‘exceptional’ effect?

25.8.2007

Official Journal of the European Union

C 199/23

Reference for a preliminary ruling from the Rechtbank van koophandel te Antwerpen (Belgium) lodged on 27 June 2007 — Galatea BVBA v Sanoma Magazines Belgium NV

(Case C-299/07)

(2007/C 199/36)

Language of the case: Dutch

Referring court

Rechtbank van koophandel te Antwerpen

Parties to the main proceedings

Applicant: Galatea BVBA

Defendant: Sanoma Magazines Belgium NV

Question referred

Do Article 49 of the EC Treaty concerning the freedom to provide services and Directive 2005/29/EC (1) of the European Parliament and of the Council concerning unfair commercial practices preclude national legislation, such as Article 54 of the Belgian Law of 14 July 1991 on trade practices and consumer information and protection, which — except in the cases listed exhaustively in that law — prohibits any linked offer by a vendor to a consumer whereby the acquisition, whether or not free of charge, of products, services, advantages or vouchers with which they can be obtained is linked to the acquisition of other, even identical, products or services, and this regardless of the circumstances of the case, and especially regardless of the influence which the specific offer may have on the average consumer and regardless of whether that offer can be considered in the specific circumstances to be contrary to professional diligence or fair commercial practices?

(1) Directive 2005/29/EC of the European Parliament and of the Council of 11 may 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22).

25.8.2007

Official Journal of the European Union

C 199/23

Action brought on 4 July 2007 — Commission of the European Communities v Portuguese Republic

(Case C-307/07)

(2007/C 199/37)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: H. Støvlbæk and P. Andrade, Agents)

Defendant: Portuguese Republic

Form of order sought

—	Declare that the Portuguese Republic, by failing to recognise diplomas which give access to the profession of pharmacist specialising in medical biology, has failed in relation to that profession to fulfil its obligations under Directive 89/48/EEC (1).

—	Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The Commission considers that the professional activity of pharmacist specialising in medical biology is a regulated profession, within the scope of Directive 89/48. The Portuguese transposing legislation is restricted in its application to those professions which are specified in a list. Since the profession of pharmacist specialising in medical biology is not specified in that list, the Portuguese Republic has failed to fulfil all of its obligations under Directive 89/48.

(1) Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration (OJ 1989, L 19, p. 16).

25.8.2007

Official Journal of the European Union

C 199/24

Action brought on 6 July 2007 — Commission of the European Communities v Portuguese Republic

(Case C-314/07)

(2007/C 199/38)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and P. Costa de Oliveira, Agents)

Defendant: Portuguese Republic

Form of order sought

—

Declare that the Portuguese Republic has failed to fulfil its obligations under Article 39 EC and Article 3(1) of Regulation (EEC) No 1612/68 of the Council (1) on freedom of movement for workers within the Community by providing that for the purposes of determining the ranking of candidates in external competitions for teaching staff in the Autonomous Region of the Azores priority is to be given to candidates who fall under Article 25(7)(a) of the Regulamento de Concurso (Competition regulation) adopted by Decreto Legislativo Regional (Regional Legislative Decree) No 27/2003/A of 9 June 2003;

—	Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The criteria for priority laid down in Article 25(7) of the Regional Legislative Decree No 27/2003/A of 9 June 2003 in order to determine the ranking of the candidates to be appointed to posts in schools and teaching establishments in the Autonomous Region of the Azores for a period of not less than 3 years constitute discrimination on grounds of nationality, contrary to the provisions of Community law on freedom of movement for workers, irrespective of the fact that they apply also to Portuguese citizens resident in other areas of Portugal. The concept of discrimination covers not only manifest discrimination on grounds of nationality, but also all measures which by applying other differentiating criteria lead in fact to the same result.

The Commission submits that the argument of the Portuguese authorities, that if the candidate has a connection to the Autonomous Region of the Azores the candidate may be thought inclined to remain in the region, cannot be considered an objective factor which justifies the restriction in question on the appointment of candidates in external competitions.

(1) OJ, English Special Edition 1968 (II), p. 475.

25.8.2007

Official Journal of the European Union

C 199/26

Judgment of the Court of First Instance (First Chamber) of 12 July 2007 — Sanders and Others v Commission

(Case T-45/01) (1)

(Staff employed at the JET Joint Undertaking - Application of a legal status different from that of members of the temporary staff - Compensation for material damage sustained)

(2007/C 199/47)

Language of the case: English

Parties

Applicants: Stephen G. Sanders (Oxfordshire, United Kingdom) and the 94 applicants whose names appear in the annex (represented by: initially P. Roth QC, I. Hutton, E. Mitrophanous and A. Howard, Barristers, and subsequently P. Roth QC, I. Hutton and B. Lask, Barristers,)

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

Intervener in support of the defendant: Council of the European Union (represented by: initially J.-P. Hix and A. Pilette and subsequently J.-P. Hix and B. Driessen, Agents)

Re:

Fixing, pursuant to the judgment of the Court of First Instance of 5 October 2004 in T-45/01 Sanders and Others v Commission [2004] ECR II-3315, the amount of damages for the financial loss sustained by each of the applicants as a result of the fact that they were not recruited as temporary servants of the Communities during the time they worked at the Joint European Torus (JET) Joint Undertaking.

Operative part of the judgment

1.	Orders the Commission to pay to each of the applicants damages corresponding to the sum indicated for each of them in column 6 of Annex 3 to the present judgment;

2.	Orders that that sum shall bear interest at the rate of 5.25 % from 31 December 1999 until actual payment;

3.	Orders the Commission to bear its own costs and to pay the costs of the applicants incurred in respect of the entire proceedings before the Court of First Instance;

4.	Orders the Council to bear its own costs.

(1) OJ C 134, 5.5.2001.

25.8.2007

Official Journal of the European Union

C 199/26

Judgment of the Court of First Instance (First Chamber) of 12 July 2007 — Eagle and Others v Commission

(Case T-144/02) (1)

(Staff employed at the JET Joint Undertaking - Application of a legal status different from that of members of the temporary staff - Compensation for material damage sustained)

(2007/C 199/48)

Language of the case: English

Parties

Applicants: Richard J. Eagle (Oxfordshire, United Kingdom) and the 12 applicants whose names appear in the annex (represented by: D. Beard, Barrister)

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

Intervener in support of the defendant: Council of the European Union (represented by: J.P. Hix and B. Driessen, Agents)

Re:

Fixing, pursuant to the judgment of the Court of First Instance of 5 October 2004 in T-144/02 Eagle and Others v Commission [2004] ECR II-3381, the amount of damages for the financial loss sustained by each of the applicants as a result of the fact that they were not recruited as temporary servants of the Communities during the time they worked at the Joint European Torus (JET) Joint Undertaking.

Operative part of the judgment

1.	Orders the Commission to pay to each of the applicants damages corresponding to the sum indicated for each of them in column 6 of Annex 3 to the present judgment;

2.	Orders that that sum shall bear interest at the rate of 5.25 % from 31 December 1999 until actual payment;

3.	Orders the Commission to bear its own costs and to pay the costs of the applicants incurred in respect of the entire proceedings before the Court of First Instance;

4.	Orders the Council to bear its own costs.

(1) OJ C 169, 13.7.2002.

25.8.2007

Official Journal of the European Union

C 199/27

Judgment of the Court of First Instance (Second Chamber) of 11 July 2007 — Jose Maria Sison v Council of the European Union

(Case T-47/03) (1)

(Common foreign and security policy - Restrictive measures against certain persons and entities with a view to combating terrorism - Freezing of funds - Competence of the Community - Action for annulment - Rights of the defence - Statement of reasons - Right to effective judicial protection - Action for damages)

(2007/C 199/49)

Language of the case: English

Parties

Applicant: Jose Maria Sison (Utrecht, Netherlands) (represented by J. Fermon, A. Comte, H. Schultz, D. Gurses and T. Olsson, lawyers)

Defendant: Council of the European Union (represented by: M. Vitsentzatos and M. Bishop, acting as Agents)

Interveners in support of the applicants: Negotiating Panel of the National Democratic Front of the Philippines (Utrecht); Luis G. Jalandoni (Utrecht); Fidel V. Agcaoili (Utrecht); Maria Consuelo K. Ledesma (Utrecht) (represented by B. Tomlow, lawyer)

Interveners in support of the defendants: Kingdom of the Netherlands (represented by H. Sevenster, acting as Agent) and United Kingdom of Great Britain and Northern Ireland (represented initially by R. Caudwell and subsequently by C. Gibbs, acting as Agents, and by S. Moore, Barrister)

Re:

Application for, first, partial annulment of Council Decision 2002/974/EC of 12 December 2002 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2002/848/EC (OJ 2002 L 337, p. 85), and, secondly, compensation for damage.

Operative part of the judgment

The Court:

1.	Annuls Council Decision 2006/379/EC of 29 May 2006 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2005/930/EC in so far as it concerns the applicant;

2.	Rejects the application for compensation;

Orders the Council to bear, in addition to its own costs, the applicant's costs, including those incurred in the proceedings for interim measures, and also the costs of the Negotiating Panel of the National Democratic Front of the Philippines, Luis G. Jalandoni, Fidel V. Agcaoili and Maria Consuelo K. Ledesma;

4.	Orders the Kingdom of the Netherlands and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

(1) OJ C 101, 26.4.2003.

25.8.2007

Official Journal of the European Union

C 199/27

Judgment of the Court of First Instance of 11 July 2007 — Fédération des industries condimentaires de France and Others v Commission

(Case T-90/03) (1)

(Non-contractual liability - Incompatibility of the Community prohibition on the importation of meat containing substances having a hormonal action with the rules of the World Trade Association (WTO) - Imposition by the United States of America of a surcharge on the import of products from the Community pursuant to WTO authorisation - Termination by the Commission of proceedings to investigate trade barriers - Application for compensation of groups of Community exporters adversely affected by the surcharge)

(2007/C 199/50)

Language of the case: French

Parties

Applicants: Fédération des industries condimentaires de France (FICF) (Paris, France); the Confédération Générale des producteurs de lait de brebis et des industriels de Roquefort (Millau, France); Comité économique agricole régional fruits et légumes de Bretagne (Cerafel) (Morlaix, France); and Comité interprofessionnel des palmipèdes à foie gras (CIFOG) (Paris, France) (represented by: initially, M. Jacquot and O. Prost, and subsequently, O. Prost, K. Lentz, E. Berthelot and M. Baudin, lawyers)

Defendant: Commission of the European Communities (represented by: P. Kuijper, C. Brown and G. Boudot, acting as Agents)

Party intervening in support of the defendant: Kingdom of Spain (represented by: initially, E. Braquehais Conesa, and subsequently, J. Rodriguez Cárcamo, acting as Agents)

Re:

Application for compensation for the damage allegedly caused by the Commission's purportedly unlawful action in the face of retaliatory trade measures taken by the United States of America in the so-called case on ‘beef having a hormonal action’.

Operative part of the judgment

The Court:

1.	Dismisses the application;

2.	orders the applicants jointly and severally to bear their own costs and to pay those incurred by the Commission;

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

(1) OJ C 112, 10.5.2003.

25.8.2007

Official Journal of the European Union

C 199/28

Order of the Court of First Instance of 11 July 2007 — Mülhens v OHIM — Conceria Toska (TOSKA)

(Case T-263/03) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark TOSKA - Earlier national word mark TOSCA - Relative grounds for refusal - Well-known trade mark within the meaning of Article 6 bis of the Paris Convention - Article 8(1)(b) of Regulation (EC) No 40/94 - Article 8(5) of Regulation (EC) No 40/94)

(2007/C 199/52)

Language of the case: Italian

Parties

Applicant: Mülhens GmbH & Co. KG (Cologne, Germany) (represented by: T. Schulte-Beckhausen, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: M. Capostagno and O. Montalto, Agents)

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Conceria Toska Srl (Corsico, Italy) (represented by: G. Cimolino, lawyer)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 13 May 2003 (Case R-369/2002-2) concerning opposition proceedings between Mülhens GmbH & Co. KG and Conceria Toska Srl

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Mülhens GmbH & Co. KG to pay the costs.

(1) OJ C 289, 29.11.2003.

25.8.2007

Official Journal of the European Union

C 199/29

Judgment of the Court of First Instance of 12 July 2007 — CB v Commission

(Case T-266/03) (1)

(Competition - Agreements, decisions and concerted practices - Bankcards - Decision ordering an investigation - Article 14(3) of Regulation No 17 - Statement of reasons - Proportionality)

(2007/C 199/53)

Language of the case: French

Parties

Applicant: Groupement des cartes bancaires (CB) (Paris, France) (represented by: A. Georges and J. Ruiz Calzado, lawyers)

Defendant: Commission of the European Communities (represented by: initially T. Christoforou and O. Beynet and then by T. Christoforou and F. Arbault, Agents)

Re:

Firstly, action for the annulment of Commission Decision C(2003) 1524/9 of 7 May 2003 in Case COMP/D1/38.606 ordering Groupement des cartes bancaires and its subsidiaries to submit to an investigation under Article 14(3) of Council Regulation No 17: First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition, Series I Chapter 1959-1962, p. 87), as amended, and, secondly, action for the removal from the file of all documents and other evidence brought to the knowledge of the Commission during the investigation and for their return to the applicant

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders the applicant to pay the costs.

(1) OJ C 251, 18.10.2003.

25.8.2007

Official Journal of the European Union

C 199/29

Judgment of the Court of First Instance of 11 July 2007 — Stichting Al-Aqsa v Council

(Case T-327/03) (1)

(Common foreign and security policy - Restrictive measures against certain persons and entities with a view to combating terrorism - Freezing of funds - Action for annulment - Statement of reasons)

(2007/C 199/54)

Language of the case: English

Parties

Applicant: Stichting Al-Aqsa (Heerlen — Netherlands) (represented by: V. Koppe and L. Janssen, lawyer)

Defendant: Council of the European Union (represented by: M. Bishop and S. Marquardt, Agents)

Re:

Annulment in part, first, of Council Decision 2003/480/EC of 27 June 2003 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2002/974/EC (OJ 2003 L 160, p. 81), and, second, of Council Decision 2003/646/EC of 12 September 2003 implementing Article 2(3) of Regulation No 2580/2001 and repealing Decision 2003/1480 (OJ 2003 L 229, p. 22).

Operative part of the judgment

The Court:

1.	Annuls Council Decision 2006/379/EC of 29 May 2006 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2005/930 in so far as it concerns Stichting Al-Aqsa;

2.	Declares that there is no need to rule on the claim for a declaration, pursuant to Article 241 EC, that Council Regulation No 2580/2001 of 27 December 2001 is unlawful;

3.	Orders the Council to bear, in addition to its own costs, the costs of Stichting Al-Aqsa:

4.	Orders the Kingdom of the Netherlands to pay its own costs.

(1) OJ C 289, 29.11.2003.

25.8.2007

Official Journal of the European Union

C 199/29

Judgment of the Court of First Instance of 11 July 2007 — Schneider Electric v Commission

(Case T-351/03) (1)

(Non-contractual liability of the Community - Loss sustained by an undertaking as a result of a sufficiently serious breach of Community law vitiating the control procedure relating to a merger's compatibility with the common market)

(2007/C 199/55)

Language of the case: French

Parties

Applicant: Schneider Electric SA (Rueil-Malmaison — France) (represented by: A. Winckler and M. Pittie, lawyers)

Defendant: Commission of the European Communities (represented by: initially by P. Oliver, É. Gippini Fournier and C. Ingen-Housz, and subsequently by P. Oliver, O. Beynet and R. Lyal, then by P. Oliver, R. Lyal and F. Arbault, Agents)

Intervener in support of the applicant: French Republic (represented by: G. de Bergues, Agent)

Intervener in support of the defendant: Federal Republic of Germany (represented by: W.-D. Plessing and M. Lumma, Agents)

Re:

Action seeking compensation for the loss allegedly suffered by the applicant as a result of illegality vitiating the control procedure relating to compatibility with the common market of the merger between Schneider Electric SA and Legrand SA.

Operative part of the judgment

The Court:

Orders the European Community to make good, first, the expenses incurred by Schneider Electric SA in respect of its participation in the resumed merger control procedure which followed delivery of the judgments of the Court of First Instance on 22 October 2002 in Cases T-310/01 and T-77/02 Schneider Electric v Commission and, second, two thirds of the loss sustained by Schneider Electric as a result of the reduction in the price of divestiture of Legrand SA which Schneider Electric had to concede to the transferee in exchange for the postponement of the effective date of sale of Legrand until 10 December 2002;

2.	Dismisses the action as to the remainder;

3.	Orders the parties to communicate to the Court, within the period of three months from 11 July 2007, the amount representing the first head of loss, jointly agreed in accordance with the procedure set out in paragraph 320 of this judgment;

4.	Failing such agreement, orders the parties to submit to the Court, within the same period, their proposed figures;

5.	Orders that the amount of the second head of loss of Schneider Electric referred to in paragraph 1 above shall be assessed by an expert;

6.	Invites Schneider Electric and the Commission to nominate the expert or to propose to the Court a list of experts so that one may be appointed by the Court from that list;

7.	Instructs the Registrar of the Court to transmit to the expert for the purposes of his examination a certified copy of Annexes 8 and 29 to the application;

8.	Declares that the expert shall be invited to submit his report within a period of time to be determined;

9.	Instructs the Registrar of the Court to serve the report on the parties;

10.	Declares that the compensation shall be re-assessed and increased to take account of interest in accordance with the criteria defined in paragraphs 345 and 346 of this judgement;

11.	Reserves the decision on costs.

(1) OJ C 7, 10.1.2004.

25.8.2007

Official Journal of the European Union

C 199/30

Order of the Court of First Instance of 11 July 2007 — Mülhens v OHIM — Cara (TOSKA LEATHER)

(Case T-28/04) (1)

(Community trade mark - Opposition proceedings - Application for figurative Community trade mark TOSKA LEATHER - Earlier national word mark TOSCA - Relative grounds for refusal - Well-known trade mark within the meaning of Article 6 bis of the Paris Convention - Article 8(1)(b) of Regulation (EC) No 40/94 - Article 8(5) of Regulation (EC) No 40/94)

(2007/C 199/56)

Language of the case: Italian

Parties

Applicant: Mülhens GmbH & Co. KG (Cologne, Germany) (represented by: T. Schulte-Beckhausen, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: initially M. Capostagno and then by O. Montalto, Agents)

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Mirco Cara (Vigevano, Italy) (represented by: G. Cimolino, lawyer)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 20 November 2003 (Case R 10/2003-1) concerning opposition proceedings between Mülhens GmbH & Co. KG and Mirco Cara

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Mülhens GmbH & Co. KG to pay the costs.

(1) OJ C 106, 30.4.2004.

25.8.2007

Official Journal of the European Union

C 199/31

Judgment of the Court of First Instance of 11 July 2007 — Mülhens v OHIM/Minoronzoni (TOSCA BLU)

(Case T-150/04) (1)

(Community trade mark - Opposition procedure - Application for figurative Community trade mark TOSCA BLU - Earlier national word mark TOSCA - Relative grounds for refusal - Well-known trade mark within the meaning of Article 6 bis of the Paris Convention - Article 8(1)(b) of Regulation (EC) No 40/94 - Article 8(5) of Regulation (EC) No 40/94)

(2007/C 199/57)

Language of the case: Italian

Parties

Applicant: Mülhens GmbH & Co. KG (Cologne, Germany) (represented by: T. Schulte-Beckhausen, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: M. Capostagno and O. Montalto, agents)

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Minoronzoni Srl (Ponte San Pietro, Italy) (represented by: G. Floridia, F. Polettini and R. Floridia, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 18 February 2004 (Case R 949/2001-1) relating to opposition proceedings between Mühlens GmbH & Co. KG and Minoronzoni Srl.

Operative part of the judgment

1.	The action is dismissed;

2.	Mühlens GmbH & Co. KG are ordered to pay the costs.

(1) OJ C 239, 25.9.2004.

25.8.2007

Official Journal of the European Union

C 199/31

Judgment of the Court of First Instance of 11 July 2007 — Asklepios Kliniken GmbH v Commission of the European Communities

(Case T-167/04) (1)

(State aid - Public hospitals - Compensation for operating losses and provision of guarantees - Complaint - Failure by the Commission to define its position - Action for failure to act - Locus standi - Admissibility - Reasonable time frame - Regulation (EC) No 659/1999)

(2007/C 199/58)

Language of the case: German

Parties

Applicant: Asklepios Kliniken GmbH (Königstein-Falkenstein, Germany) (represented by: K. Füßer, lawyer)

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

Interveners in support of the defendants: Federal Republic of Germany (represented: initially by C.-D. Quassowski and A. Tiemann, and subsequently by W.-D. Plessing and C. Schulze-Bahr, Agents); and United Kingdom of Great Britain and Northern Ireland (represented: initially by M. Bethell, and subsequently by C. Gibbs and E. O'Neill, Agents)

Re:

Application for a declaration under Article 232 EC that, by failing to take a decision under Article 4(2), (3) or (4) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88] EC (OJ 1999 L 83, p. 1) on the complaint lodged by the applicant concerning the award of allegedly unlawful aid to publicly-owned hospitals in Germany, the Commission has failed to fulfil its obligations under Article 88 EC and Articles 10(1) and 13(1) of Regulation No 659/1999.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Asklepios Klinken GmbH to pay both its own costs and those incurred by the Commission;

3.	Orders the Federal Republic of Germany and the United Kingdom of Great Britain and Northern Ireland to bear their own costs.

(1) OJ C 201, 7.8.2004.

25.8.2007

Official Journal of the European Union

C 199/32

Judgment of the Court of First Instance of 11 July 2007 — Flex Equipos de Descanso, SA v OHIM — Leggett & Platt (LURA-FLEX)

(Case T-192/04) (1)

(Community trade mark - Opposition proceedings - Application for Community word mark LURA-FLEX - Earlier national figurative marks containing the word element ‘flex’ - Submission to the Opposition Division out of time of translations of documents provided in support of the reputation of earlier marks - Obligation on the Board of Appeal to assess the need to take account of the documents translated)

(2007/C 199/59)

Language of the case: English

Parties

Applicant: Flex Equipos de Descanso, SA (Madrid (Spain) (represented by: initially by R. Ocquet, and subsequently, I. Valdelomar Serrano, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Leggett & Platt, Inc., (Carthage, Missouri, United States) (represented by: G. Cronin and S. Castley, Solicitors, and G. Hollingworth, Barrister)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 18 March 2004 (Case R 333/2003-1) relating to opposition proceedings between Flex Equipos de Descanso, SA and Leggett & Platt, Inc.

Operative part of the judgment

The Court:

1.	Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 18 March 2004 (Case R 333/2003-1);

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

3.	Orders the intervener to bear its own costs.

(1) OJ C 217, 28.8.2004.

25.8.2007

Official Journal of the European Union

C 199/32

Judgment of the Court of First Instance of 11 July 2007 — Sweden v Commission

(Case T-229/04) (1)

(Directive 91/414/EEC - Plant protection products - Active substance paraquat - Authorisation to place products on the market - Authorisation procedure - Protection of human and animal health)

(2007/C 199/60)

Language of the case: Swedish

Parties

Applicant: Kingdom of Sweden (represented by: A. Kruse, Agent)

Defendant: Commission of the European Communities (represented by: L. Ström van Lier and B. Doherty, Agents)

Interveners in support of the applicant: Kingdom of Denmark (represented by: J. Molde, A. Jacobsen and J. Bering Liisberg, Agents); Republic of Austria (represented by E. Riedl, Agent); and Republic of Finland (represented by T. Pynnä and E. Bygglin, Agents)

Re:

Annulment of Commission Directive 2003/112/EC of 1 December 2003 amending Council Directive 91/414/EEC to include paraquat as an active substance (OJ 2003 L 321, p. 32)

Operative part of the judgment

The Court:

1.	Annuls Commission Directive 2003/112/EC of 1 December 2003 amending Council Directive 91/414/EEC to include paraquat as an active substance;

2.	Orders the Commission to pay the costs incurred by the Kingdom of Sweden and to bear its own costs;

3.	Orders the Kingdom of Denmark, the Republic of Austria and the Republic of Finland to bear their own costs.

(1) OJ C 106, 30.4.2004 (formerly Case C-102/04).

25.8.2007

Official Journal of the European Union

C 199/33

Judgment of the Court of First Instance of 3 July 2007 — Au Lys de France v Commission

(Case T-458/04) (1)

(Competition - Dominant position - Market in the supply of sites for the operation of retail businesses at Roissy-Charles-de-Gaulle airport held by the operator Aéroports de Paris - Rejection of a complaint - Action for annulment - No Community interest)

(2007/C 199/61)

Language of the case: French

Parties

Applicant: Au Lys de France SA (Raincy, France) (represented by: G. Lesourd, lawyer)

Defendant: Commission of the European Communities (represented by: initially, P. Olivier and O. Beynet, and subsequently, P. Olivier, Agents)

Intervener in support of the applicant: Aéroports de Paris (Paris, France) (represented by: H. Calvert and O. Billard, lawyers)

Re:

Action for annulment of the Commission's decision of 17 September 2004 to take no further action on the complaint brought by the applicant against the public undertaking Aéroports de Paris for breach of Article 82 EC (Case COMP/D3/38.666 Au Lys de France/Aéroports de Paris).

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Au Lys de France SA to pay the costs.

(1) OJ C 45 of 19.2.2005.

25.8.2007

Official Journal of the European Union

C 199/33

Judgment of the Court of First Instance of 4 July 2007 — Bouygues and Bouygues Télécom v Commission

(Case T-475/04) (1)

(State Aid - Mobile telephony - Alteration of the fees payable by Orange and SFR for the UMTS licences - Decision finding no State aid)

(2007/C 199/62)

Language of the case: French

Parties

Applicant: Bouygues and Bouygues Tèlécom (Boulogne-Billancourt, France) (represented by: L. Vogel, J. Vogel, B. Amory, A. Verheyden, F. Sureau and D. Théophile, lawyers)

Defendant: Commission of the European Communities (represented by: J.L. Buendia Sierra and C. Giolito, Agents)

Interveners in support of the defendant: French Republic (represented by: G. de Bergues and S. Ramet, Agents); Société française de radiotéléphone — SFR (Paris, France) (represented by: C. Vadja QC and A. Vincent, lawyer; and Orange France SA (Montrouge, France) (represented by: A. Gosset-Grainville and S. Hautbourg, lawyers)

Re:

Action for annulment of the Commision's decision of 20 July 2004 (State aid NN 42/2004 — France) concerning alteration of the fees payable by Orange and SFR for the UMTS (Universal Mobile Telecommunication System) licences.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Bouygues and Bouygues Télécom SA jointly and severally to pay their own costs, those of the Commission and those of Orange France SA and Société française de radiotéléphone — SFR

3.	Orders the French Republic to pay its own costs.

(1) OJ C 69 of 19.3.2005.

25.8.2007

Official Journal of the European Union

C 199/34

Judgment of the Court of First Instance of 11 July 2007 — Centeno Mediavilla and Others v Commission

(Case T-58/05) (1)

(Staff cases - Officials - Appointment - Entry into force of the new Staff Regulations - Transitional rules on classification of the grade on recruitment - Article 12 to Annex XIII of the new Staff Regulations)

(2007/C 199/64)

Language of the case: French

Parties

Applicants: Isabel Clara Centeno Mediavilla (Seville, Spain); Delphine Fumey (Evere, Belgium); Eva Gerhards (Brussels, Belgium); Iona M. S. Hamitlon (Brussels); Raymond Hill (Brussels); Jean Huby (Brussels); Patrick Klein (Brussels); Domenico Lombardi (Brussels); Thomas Millar (London, United Kingdom); Miltiadis Moraitis (Woluwe-Saint-Lambert, Belgium); Ansa Norman Palmer (Brussels); Nicola Robinson (Brussels); François-Xavier Rouxel (Brussels); Marta Silva Mendes (Brussels); Peter van den Hul (Tervuren, Belgium); Fritz Von Nordheim Nielsen (Hoeilaart, Belgium); and Michaël Zouridakis (Brussels) (represented by: initially, G. Vandersanden, L. Levi and A. Finchelstein, and subsequently, G. Vandersanden and L. Levi, lawyers)

Defendant: Commission of the European Communities (represented by: J. Currall and H. Kraemer, acting as Agents)

Party intervening in support of the defendant: Council of the European Union (represented by: initially, M. Arpio Santacruz, M. Sims and and I. Sulce, and subsequently by M. Arpio Santacruz and and I. Sulce, acting as Agents)

Re:

Application for annulment of the decisions appointing the applicants as probationary officials, in so far as they fix their classification in the grade on the basis of the transitional provisions in Article 12(3) of Annex XIII to the Staff Regulations of officials of the European Communities, as amended by Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 (OJ 2004 L 124, p. 1)

Operative part of the judgment

The Court:

1.	Dismisses the application;

2.	orders the Commission to bear its own costs and to pay half the costs incurred by the applicants;

3.	orders the applicants to bear half the costs incurred by them;

4.	orders the Council to bear its own costs.

(1) OJ C 93, 16.4.2005.

25.8.2007

Official Journal of the European Union

C 199/35

Judgment of the Court of First Instance of 12 July 2007 — Evropaiki Dynamiki v Commission

(Case T-250/05) (1)

(Public service contracts - Community tendering procedure - Provision of services for the collection, production and dissemination of electronic publications, in particular the Supplement to the Official Journal of the European Union - Rejection of a tender - Equal treatment - Obligation to state reasons - No manifest error of assessment)

(2007/C 199/66)

Language of the case: English

Parties

Applicant: Evropaiki Dynamiki — Proigmena Systimata Tilepikinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis, lawyer)

Defendant: Commission of the European Communities (represented by: M. Wilderspin and M. Šimerdová, Agents)

Re:

Application for annulment of the decision of the Office for Official Publications of the European Communities of 15 April 2005 to reject the applicant's tender in connection with the call for tenders issued on 19 November 2004 (OJ 2004, S 226) for the provision of services in relation to the collection, production and dissemination of electronic publications, in particular the Supplement to the Official Journal of the European Union, and to award the contract to the successful tenderer.

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Evropaiki Dynamiki — Proigmena Systimata Tilepikinonion Pliroforikis kai Tilematikis AE to pay the costs.

(1) OJ C 217, 3.9.2005.

25.8.2007

Official Journal of the European Union

C 199/36

Judgment of the Court of First Instance of 11 July 2007 — El Corte Inglés SA v OHIM (PiraÑAM diseño original Juan Bolaños)

(Case T-443/05) (1)

(Community trade mark - Opposition proceedings - Application for a Community figurative mark including the word elements ‘PiraÑAM diseño original Juan Bolaños’ - Earlier national word marks PIRANHA - Relative grounds for refusal - Likelihood of confusion - Similarity of the goods - Article 8(1)(b) of Regulation (EC) No 40/94)

(2007/C 199/69)

Language of the case: Spanish

Parties

Applicant: El Corte Inglés SA (Madrid, Spain) (represented by: J. Rivas Zurdo, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Juan Bolaños Sabri (Torellano, Spain) (represented by: P. López Ronda and G. Marín Raigal, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 21 September 2005 (Case R 1191/2004-1), relating to opposition proceedings between El Corte Inglés SA and Juan Bolaños Sabri the of 21 September 2005,

Operative part of the judgment

1.	Annuls the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 21 September 2005 (Case R 1191/2004-1);

2.	Orders OHIM to bear its own costs and to pay the costs incurred by El Corte Inglés SA;

3.	Orders the intervener to bear its own costs.

(1) OJ C 74, 25.3.2006.

25.8.2007

Official Journal of the European Union

C 199/37

Judgment of the Court of First Instance of 11 July 2007 — Alrosa v Commission

(Case T-170/06) (1)

(Competition - Abuse of a dominant position - World market for the production and supply of rough diamonds - Decision making binding the commitments proposed by the undertaking in a dominant position - Article 9 of Regulation (EC) No 1/2003 - Principle of proportionality - Contractual freedom - Right to be heard)

(2007/C 199/70)

Language of the case: English

Parties

Applicant: Alrosa Company Ltd (Mirny, Russia) (represented by: R. Subiotto, S. Mobley and K. Jones, lawyers)

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

Re:

Annulment of Commission Decision 2006/520/EC of 22 February 2006 relating to a proceeding pursuant to Article 82 [EC] and Article 54 of the EEA Agreement (Case COMP/B-2/38.381 — De Beers) (OJ 2006 L 205, p. 24) making binding the commitments given by De Beers to bring to an end its purchases of rough diamonds from Alrosa with effect from 2009, after a period of progressive reduction of the amounts purchased by it from 2006 to 2008, and bringing the proceedings to an end in accordance with Article 9 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1).

Operative part of the judgment

The Court:

1.	Annuls Commission Decision 2006/520/EC of 22 February 2006 relating to a proceeding pursuant to Article 82 [EC] and Article 54 of the EEA Agreement (Case COMP/B-2/38.381 — De Beers);

2.	Orders the Commission to pay its own costs and those incurred by Alrosa Company Ltd.

(1) OJ C 212, 2.9.2006.

25.8.2007

Official Journal of the European Union

C 199/37

Judgment of the Court of First Instance of 9 July 2007 — Sun Chemical Group and Others v Commission

(Case T-282/06) (1)

(Competition - Concentration - European rosin resin market for printing ink applications - Decision declaring a concentration compatible with the common market - Guidelines on the assessment of horizontal mergers - Market shares and concentration levels - Non-coordinated effects - Coordinated effects - Obligation to state reasons)

(2007/C 199/72)

Language of the case: English

Parties

Applicants: Sun Chemical Group and Others (Weesp, Netherlands); Siegwerk Druckfarben AG (Sieburg, Germany) and Flint Group Germany GmbH (Stuttgart, Germany) (represented by: N. Dodoo and K.H. Eichhorn, lawyers)

Defendant: Commission of the European Communities (represented by: A. Whelan, S. Noë and V. Bottka, Agents)

Interveners in support of the defendant: The Apollo Group (New York, New York, United States) and Hexion Speciality Chemicals, Inc. (Columbus, Ohio (United States)) (represented by: I.M. Sinan, Barrister and J. Uphoff, Solicitor)

Re:

Application for annulment of the Commission Decision of 29 May 2006 declaring compatible with the common market and the EEA Agreement the concentration concerning the acquisition by Hexion Speciality Chemicals (The Apollo Group) of full control of Akzo Nobel's Inks and Adhesive Resins business (Case COMP/M.4071- Apollo/Akzo Nobel IAR)

Operative part of the judgment

The Court:

1.	Dismisses the action;

2.	Orders Sun Chemical Group BV, Siegwerk Druckfarben AG and Flint Group Germany GmbH to bear their own costs and to pay those of the Commission and of the interveners.

(1) OJ C 281, 18.11.2006.

25.8.2007

Official Journal of the European Union

C 199/38

Order of the President of the Court of First Instance of 18 June 2007 — Italy v Commission

(Case T-431/04 R)

(Interim relief - Application for interim measures - Regulation (EC) No 1429/2004 - Common organisation of the market in wine - System for the use of names of vine varieties and their synonyms - Use limited in time - Application devoid of purpose)

(2007/C 199/73)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: M. Fiorilli, Agent)

Defendant: Commission of the European Communities (represented initially by: E. Righini and L. Visaggio, and subsequently by F. Jimeno Fernández and E. Righini, acting as Agents)

Intervener in support of the form of order sought by the defendant: Republic of Hungary (represented initially by: P. Gottfried, and subsequently by R. Somssich and J. Stadler, Agents)

Re:

Application for interim measures seeking, principally, a stay of execution until delivery of the judgment by the Court in Joined Cases C-23/07 and C-24/07 of the provision limiting to 31 March 2007 the right to use the name ‘tocai friulano’, which name appears in the form of an explanatory note to Point 103 of Annex I to Commission Regulation (EC) No 1429/2004 of 9 August 2004 amending Regulation (EC) No 753/2002 laying down certain rules for applying Council Regulation (EC) No 1493/1999 as regards the description, designation, presentation and protection of certain wine sector products (OJ 2004 L 263, p. 11), and, as a subsidiary plea, a stay of execution of that provision within the territory of the Italian Republic until delivery of the judgment by the Court in Joined Cases C-23/07 and C-24/07, together with a prohibition of exports of production in the Community and without prejudice to the marketing of Hungarian-produced wine bearing the name ‘tokaj’ or homonyms thereof accepted for marketing in Italy and in the Community.

Operative part of the order

1.	The application for interim measures is dismissed.

2.	Costs are reserved.

25.8.2007

Official Journal of the European Union

C 199/38

Action brought on 4 June 2007 — Czech Republic v Commission

(Case T-194/07)

(2007/C 199/74)

Language of the case: Czech

Parties

Applicant: Czech Republic (represented by: T. Boček, Agent)

Defendant: Commission of the European Communities

Form of order sought

—	annul the contested decision;

—	order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks annulment of Commission Decision C(2007) 1294 final version of 26 March 2007 concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the Czech Republic in accordance with Directive 2003/87/EC of the European Parliament and of the Council. (1) According to the contested decision, certain aspects of the Czech Republic's national allocation plan do not comply with Annex III to Directive 2003/87/EC.

The applicant submits that the Commission has infringed Article 9(3) of Directive 2003/87/EC, as well as the principle of legal certainty and legitimate expectation, by failing to published the contested decision within the time limit laid down by Article 9(3) of Directive 2003/87/EC.

In addition, the applicant states that the Commission exceeded its power and thus infringed Article 9(3) in conjunction with Articles 9(1) and 11(2) of Directive 2003/87/EC in that, in the contested decision, it applied its own method for fixing the maximum quantity of allowances and on basis of that method in fact laid down, in binding form, the total quantity of allowances which the Czech Republic is entitled to allocate.

Even if the Commission were entitled to use its own method for establishing that the national allocation plan complies with the requirements of Directive 2003/87/EC, it infringed Article 9(3) of that directive in that (i) the method it used was neither transparent nor objective and (ii) the resulting quantity of emissions allowances does not comply with the criteria laid down in Annex III to Directive 2003/87/EC.

Finally, the applicant submits that the Commission infringed Article 9(3) of Directive 2003/87/EC by failing adequately to state reasons.

(1) Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive [96/61/EC] (OJ 2003 L 275, p. 32).

25.8.2007

Official Journal of the European Union

C 199/39

Action brought on 15 June 2007 — Hellenic Republic v Commission

(Case T-214/07)

(2007/C 199/75)

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by: I. Khalkias and G. Kanellopoulos)

Defendant: Commission of the European Communities

Form of order sought

—

annulment of the contested decision in its entirety; in the alternative, amendment of the contested Commission decision as specified, namely: limitation of the relevant correction to the 24 months in fact considered; no correction in the sector of arable crops for the harvesting year 2003 or, in any event, that the correction be limited to only 2 % of the expenditure for durum wheat; that no financial correction be made in the sector of measures for the smaller Aegean islands concerning certain agricultural products or, in any event, that it be limited to 2 %.

—	an order that the Commission of the European Communities pay the costs.

Pleas in law and main arguments

By this action against Commission Decision No E(2007) 1663 final of 18 April 2007, published as Commission Decision 2007/243/EC (OJ 2007 L 106, p. 55), on the basis of which the Commission excluded from Community financing certain expenditure incurred by the Member States — in this case the Hellenic Republic — under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), the Hellenic Republic puts forward the following grounds for annulment:

In the first general ground for annulment, concerning the correction to the arable crops sectors, to the POSEI measure and to the tomato processing sector, the applicant claims that the defendant was in breach of an essential procedural requirement with regard to the lack of discussion as to the assessment of the seriousness of the infringements ascribed to Greece, the damage suffered by the Community and the level of the correction imposed; in the alternative, the decision should be annulled, according to the applicant, because the Commission was not empowered ratio temporis to impose corrections beyond the 24 months preceding the date of the document in which it formulated its final position on the correction and the level of that correction.

In the second ground of annulment, concerning the correction in respect of arable crops, the applicant alleges misinterpretation and misapplication of Article 4 of Regulation (EEC) No 3508/95 (1), Article 1(3) of Regulation (EC) No 1593/2000 (2) and Article 58 of Regulation (EC) No 445/2002 (3) since, on the basis of those provisions, it is also permissible to identify land by means of cartographic materials equivalent to orthophotomaps; in the alternative, the applicant alleges incorrect assessment of the factual circumstances and insufficient reasoning given for the disputed corrections. The applicant also alleges misinterpretation and misapplication of Article 60 of Regulation (EC) No 445/2002 or, in the alternative, incorrect assessment of the factual circumstances as regards the on-the-spot checks and the period over which they were carried out, as well as lack of any legal basis for imposing the correction, because the Commission misinterpreted, in the applicant's view, Article 15 of Regulation (EC) No 2419/2001 (4). The applicant also maintains that, in particular as concerns the correction of 10 % to durum wheat expenditure, the Commission wrongly assessed the factual circumstances and went beyond the limits of its discretion.

In its third ground of annulment, the applicant considers that, with the imposition of the corrections of 5 % and 10 % in respect of arable crops, the principle of proportionality has been infringed since, in relation to the previous year, the improvements to the system were significant, a fact that was, moreover, noted by the Commission.

In the fourth ground of annulment, which concerns the POSEI measure — Smaller Aegean Islands — the applicant submits (a) that Article 3(3) of Regulation (EEC) No 2019/93 (5) and Article 3(2) of Regulation (EEC) No 2958/93 (6) were misinterpreted and misapplied in respect of the arrangements for the supply [of certain agricultural products] to the smaller Aegean islands or, in the alternative, that the factual circumstances were wrongly assessed, since the Greek authorities acted as prescribed by the regulations; (b) that, similarly, as regards potato fields and olive groves on the small islands of the Aegean, the factual circumstances were wrongly assessed, since the LPIS (7) and the Registers functioned normally and, in any event, in respect of any minor defects, a general correction to the regime of arable crops was imposed on the applicant and a second penalty should not be imposed for the same reason in respect of the individual regimes and lastly (c) the correction to the POSEI measure was contrary to the principle of proportionality.

(1) Council Regulation (EEC) No 3508/92 of 27 November 1992 establishing an integrated administration and control system for certain Community aid schemes (OJ 1992 L 355, p. 1).

(2) Council Regulation (EC) No 1593/2000 of 17 July 2000 amending Regulation (EEC) No 3508/92 establishing an integrated administration and control system for certain Community aid schemes (OJ 2000 L 182, p. 4).

(3) Commission Regulation (EC) No 445/2002 of 26 February 2002 laying down detailed rules for the application of Council Regulation (EC) No 1257/1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2002 L 74, p. 1).

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

(5) Council Regulation (EEC) No 2019/93 of 19 July 1993 introducing specific measures for the smaller Aegean islands concerning certain agricultural products (OJ 1993 L 184, p. 1).

(6) Commission Regulation (EEC) No 2958/93 of 27 October 1993 laying down detailed rules for the application of Council Regulation (EEC) No 2019/93 as regards the specific arrangements for the supply of certain agricultural products (OJ 1993 L 267, p. 4).

(7) Land Parcel Identification System.

25.8.2007

Official Journal of the European Union

C 199/40

Action brought on 18 June 2007 — Transports Schiocchet — Excursions v Commission of the European Communities

(Case T-220/07)

(2007/C 199/76)

Language of the case: French

Parties

Applicant: Transports Schiocchet — Excursions (Beuvillers, France) (represented by: D. Schönberger, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—	declare the Commission to be liable non-contractually for the infringement of the applicant's fundamental rights under Council Regulation (EEC) No 517/72 of 20 March 1972;

—	declare the Commission to be liable non-contractually for the infringement of the applicant's fundamental rights since the coming into force of Council Regulation (EEC) No 684/92 of 16 March 1992;

—

order the Commission to pay to the applicant, in respect of the heads of claim referred to above, the sum of EUR 50 723 808,39, which failing any other amount, including a higher one, to be certified by an expert, together with default interest on that sum from the date of the judgment to be delivered until the date of actual payment, at the rate of 8 % per year;

—	order the Commission to pay the costs;

—	reserve to the applicant all other rights, pleas and actions.

Pleas in law and main arguments

By this application, the applicant is bringing an action for non-contractual liability seeking to obtain reparation for the damage allegedly suffered by it following the adoption by the Commission of Decision 89/524/EEC of 7 September 1989 on a dispute between Luxembourg and France on the establishment of a special regular passenger service between these two States (1), which was the subject of an action for annulment brought by the applicant and dismissed by the Court by judgment of 16 April 1991, delivered in Case C-354/89 Schiocchet v Commission (2), and following the adoption of Council Regulation (EEC) No 684/92 of 16 March 1992 on common rules for the international carriage of passengers by coach and bus (3).

In its application, the applicant claims that by adopting the measures in question the Community institutions have infringed its fundamental rights by regularising an unlawful situation involving its competitors on the market for bus transport between Luxembourg and France, who were carrying on their activities without prior authorisation.

(1) OJ 1989 L 272, p. 18.

(2) [1991] ECR I-1775.

(3) OJ 1992 L 74, p. 1.

25.8.2007

Official Journal of the European Union

C 199/41

Action brought on 26 June 2007 — Republic of Hungary v Commission of the European Communities

(Case T-221/07)

(2007/C 199/77)

Language of the case: Hungarian

Parties

Applicant: Republic of Hungary (represented by: J. Fazekas, Agent)

Defendant: Commission of the European Communities

Form of order sought

—	Annul the Commission Decision of 16 April 2007 on the national plan for the allocation of greenhouse gas emission allowances notified by Hungary in accordance with Directive 2003/87/EC of the European Parliament and of the Council (C 2007 1689 final)

—	Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant contests the validity of Commission Decision of 16 April 2007 on the national plan for the allocation of greenhouse gas emission allowances notified by Hungary in accordance with Directive 2003/87/EC of the European Parliament and of the Council (1). According to the contested decision, the national allocation plan of Hungary does not meet certain criteria laid down in Annex III to Directive 2003/87.

The legal basis of the action brought by the applicant is that Directive 2003/87, and in particular Article 9(3), does not grant to the Commission itself the power to determine, without taking any account of either the allocation plans developed and notified by the Member States under Article 9(1) and Article 11(2) of the directive or the total quantity of emission allowances to be allocated as established by the Member States in those plans. the total quantity of emission allowances which the Member States may allocate

In the event that the Court holds that the Directive 2003/87 does grant that power to the Commission, the applicant submits that the Commission made a manifest error of assessment in evaluating the total quantity of emission allowances to be allocated in accordance with the national allocation plan. Hungary states that the Commission, in its assessment, first, did not take into account the data and calculations presented in the allocation plan, and thus infringed the principle of proportionality, and secondly, made use of manifestly incorrect data and inappropriate calculations which led necessarily to an incorrect determination of the total quantity.

The applicant also claims that in the course of the procedure, the Commission infringed the principle of fair cooperation, in that, first, the Commission determined the method of calculation and the data to be used to establish the total quantity of emission allowances without consulting the Member States (including Hungary) on the subject, and secondly, the Commission did not take into account the additional information which was supplied by the applicant and which the Commission itself had requested during the procedure.

Lastly, the applicant states that the Commission did not adequately comply with its obligation to state reasons, given that, first, the Commission did not properly set out the reasons why it did not take into consideration the allocation plan notified by Hungary and the data and calculations presented in that plan; secondly, the Commission did not properly set out the reasons for the suitability of the data and calculations which it did use; and thirdly, the Commission did not state any reason why it did not take into account the additional information supplied by Hungary and which the Commission itself had requested in the course of the procedure.

25.8.2007

Official Journal of the European Union

C 199/41

Appeal brought on 25 June 2007 by Petrus Kerstens against the order of the Civil Service Tribunal made on 25 April 2007 in Case F-59/06, Kerstens v Commission

(Case T-222/07 P)

(2007/C 199/78)

Language of the case: French

Parties

Appellant: Petrus J. F. Kerstens (Overijse, Belgium) (represented by C. Mourato, lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

—	annul the contested order;

—	refer the case back to the Civil Service Tribunal before another chamber;

—	award costs as of right.

Pleas in law and main arguments

In his appeal, the applicant seeks the annulment of the order of the Civil Service Tribunal dismissing as clearly inadmissible the action whereby he sought the annulment of, first, his career development report for 2004 and, second, the decision of the appointing authority rejecting his complaint against that career development report.

In support of his appeal, the applicant raises three pleas in law.

The first alleges infringement of Article 7(1) and (3) of Annex I to the Statute of the Court of Justice, infringement of Article 20 of that Statute, and procedural irregularity adversely affecting the interests of the applicant. He argues that recourse to Article 111 of the Rules of Procedure of the Court of First Instance, applicable mutatis mutandis to the procedure before the Civil Service Tribunal, on the basis of which the contested order was made, could not take place after two exchanges of memoranda and an exchange of notes of observations, that is to say where the ordinary procedure applied. In those circumstances, the applicant argues, the Court could not rule on inadmissibility before the oral procedure.

The second plea, put forward in the alternative, alleges infringement of Article 111 of the Rules of Procedure of the Court of First Instance and irregularity in the procedure following from it. In the applicant's submission, the contested order could not have been issued on the basis of that provision without following the procedure and in particular without the oral phase, given that the advocate general had not been heard and the inadmissibility claimed was not obvious.

The third plea, raised further in the alternative, alleges infringement of the principle of the right to a fair hearing, in that the Civil Service Tribunal impliedly held that one of the annexes to the rejoinder constituted proof that the procedure in question was inadmissible, before the applicant had even had a chance to give explanations concerning that document.

25.8.2007

Official Journal of the European Union

C 199/42

Appeal brought on 27 June 2007 by Michel Thierry against the order of the Civil Service Tribunal delivered on 16 April 2007 in Case F-82/05, Thierry v Commission

(Case T-223/07 P)

(2007/C 199/79)

Language of the case: French

Parties

Appellant: Michel Thierry (Howald, Grand Duchy of Luxembourg) (represented by: F. Frabetti, lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

—	set aside the order of the Civil Service Tribunal of 16 April 2007 in Case F-82/05, notified to the applicant on 17 April 2007;

—	grant the forms of order sought by the appellant at first instance and, consequently, declare the application in Case F-82/05 to be admissible and well-founded;

—	in the alternative, refer the case back to the Civil Service Tribunal;

—	make an order as to costs, expenses and fees and order the Commission to pay them.

Pleas in law and main arguments

In his appeal, the appellant seeks to have set aside the order of the Civil Service Tribunal, which rejected in part as manifestly inadmissible and in part as manifestly unfounded the action for annulment of the list of officials promoted under the 2004 promotion procedure, in so far as that list does not include his name.

In support of his appeal, the appellant puts forward a single plea alleging an error of interpretation and of assessment of the facts, which led to a procedural error and an error of law by the Civil Service Tribunal in so far as it did not grant the application, as set out in the reply at first instance, for a member of the service in which the appellant was employed to be heard.

25.8.2007

Official Journal of the European Union

C 199/42

Action brought on 22 June 2007 — Imperial Chemical Industries v OHIM (LIGHT & SPACE)

(Case T-224/07)

(2007/C 199/80)

Language of the case: English

Parties

Applicant: Imperial Chemical Industries plc (London, United Kingdom) (represented by: S. Malynicz, Barrister, and V. Chandler, Solicitor)

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

Form of order sought

—	The decision of the First Board of Appeal dated 30 March 2007 in Case R 1631/2006-1 shall be annulled.

—	The Office shall bear its own costs and pay those of the applicant.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘LIGHT & SPACE’ for goods in class 2 — application No 5 147 756

Decision of the examiner: Refusal of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regulation No 40/94 as the Board of Appeal regarded the trade mark in question as if it were an advertising slogan, indication of quality or incitement to purchase without considering whether the trade mark could also be an indication of origin.

Furthermore, the Board of Appeal erred in its examination of the trade mark as a whole and in its examination of its component parts and committed an error of law by requiring that the trade mark combines words that are unusual or out of the ordinary in relation to the goods in question in order to acquire distinctive character.

Finally the Board of Appeal did not assess distinctiveness in relation to the specific goods applied for.

25.8.2007

Official Journal of the European Union

C 199/43

Action brought on 29 January 2007 — Vitro Corporativo v OHIM — VALLON (V)

(Case T-229/07)

(2007/C 199/81)

Language in which the application was lodged: Spanish

Parties

Applicant: Vitro Corporativo, S.A. de C.V. (represented by: J. Botella Reyna, 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: Vallon GmbH.

Form of order sought

—	order that the subject matter of the action be registered as a Community trade mark to distinguish goods in class 9.

Pleas in law and main arguments

Applicant for a Community trade mark: Vitro Corporativo, S.A. de C.V.

Community trade mark concerned: Figurative mark consisting of a letter ‘V’ (application No 2.669.513) for goods and services in classes 1, 7, 8, 9, 11, 12, 16, 17, 19, 20, 21, 22, 27, 30, 35, 39, 40, 41, 42 and 43.

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

Mark or sign cited in opposition: Community figurative mark No 51.037 (the letter V against a white background), for goods in class 9 (Apparatus for checking and supervising).

Decision of the Opposition Division: Opposition upheld and application for a Community mark for goods in class 9 rejected.

Decision of the Board of Appeal: Appeal dismissed.

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

25.8.2007

Official Journal of the European Union

C 199/43

Action brought on 2 July 2007 — Laboratorios Del Dr. Esteve v OHIM — Ester C (ESTER-E)

(Case T-230/07)

(2007/C 199/82)

Language in which the application was lodged: English

Parties

Applicant: Laboratorios Del Dr. Esteve, SA (Barcelona, Spain) (represented by: K. Manhaeve, lawyer)

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

Other party to the proceedings before the Board of Appeal: Ester C Company (Prescott, United States)

Form of order sought

—	Annul the decision of the Second Board of Appeal R 737/2006-2 of 17 April 2007;

—	order the defendant and — if applicable — Ester C Company to pay all the costs (jointly and severally).

Pleas in law and main arguments

Applicant for the Community trade mark: The Ester C Company

Community trade mark concerned: The Community word mark ‘ESTER-E’ for goods and services in Class 3 and 5 — application No 3163946

Proprietor of the mark or sign cited in the opposition proceedings: Laboratorios Del Dr. Esteve SA

Mark or sign cited: The Community figurative mark ‘ESTEVE’ for goods in Class 1, 5 and 42 and the national figurative mark ‘ESTEVE’ and ‘ESTEVE-LABORATORIO DEL DR. ESTEVE S.A.’ for goods in Class 5

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

Decision of the Board of Appeal: Rejected the opposition

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation (EC) No 40/94.

25.8.2007

Official Journal of the European Union

C 199/44

Action brought on 29 June 2007 — ITT Manufacturing Enterprises v OHIM — ITT Trademark & Trade (I.T.T.)

(Case T-231/07)

(2007/C 199/83)

Language in which the application was lodged: English

Parties

Applicant: ITT Manufacturing Enterprises Inc. (Wilmington, United States) (represented by: F. Delord, Solicitor)

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

Other party to the proceedings before the Board of Appeal: ITT Trademark & Trade GmbH (Munich, Germany)

Form of order sought

The applicant requests the Court to:

—	annul the contested decision, uphold decision No 565/2005 and order the defendant to pay the applicant's costs of this appeal; in the alternative

—	alter the contested decision, uphold decision No 565/2005 and order the defendant to pay the applicant's costs of this appeal.

Pleas in law and main arguments

Applicant for the Community trade mark: ITT Trademark & Trade GmbH

Community trade mark concerned: The Community word mark ‘ITT’ for goods and services in Class 7, 9, and 11 — application No 1152339

Proprietor of the mark or sign cited in the opposition proceedings: ITT Manufacturing Enterprises Inc.

Mark or sign cited: The national figurative trade marks as well as non-registered wellknown trade marks used in the course of trade in the Community containing or consisting of the word element ‘ITT’ for goods and services in a large number of Classes

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

Decision of the Board of Appeal: Rejected the opposition

Pleas in law: The applicant contests the Board's finding according to which the Opposition Division based its decision on an incorrect mark.

25.8.2007

Official Journal of the European Union

C 199/46

Judgment of the Civil Service Tribunal (Third Chamber) of 11 July 2007 — Dieter Wils v European Parliament

(Case F-105/05) (1)

(Staff cases - Officials - Pensions - Increase in the rate of contribution under the pension scheme pursuant to the provisions of the Staff Regulations in the version thereof in force from 1 May 2004)

(2007/C 199/88)

Language of the case: French

Parties

Applicant: Dieter Wils (Altrier, Luxembourg) (represented by: G. Vandersanden and C. Ronzi, lawyers)

Defendant: European Parliament (represented by: J. F. De Wachter and M. Mustapha Pacha, Agents)

Re:

Staff cases — Annulment of the applicant's salary slips from July 2004, insofar as they increase the rate of contribution to the pension scheme to 9.75 % following the application of the provisions of the new Staff Regulations (formerly T-399/05)

Operative part of the judgment

The Tribunal:

1.	Dismisses the action;

2.	Orders the European Parliament to bear its own costs and to pay half of Mr Wils' costs;

3.	Orders Mr Wils to bear half of his own costs;

4.	Orders the Council of the European Union and the Commission of the European Communities to bear their own costs.

(1) OJ C 10, 14.1.2006, p. 28.

25.8.2007

Official Journal of the European Union

C 199/46

Judgment of the Civil Service Tribunal (Second Chamber) of 5 July 2007 — Abarca Montiel and Others v Commission

(Case F-24/06) (1)

(Staff cases - Members of the contract staff - Grading and remuneration - Office for Infrastructure and Logistics Brussels (OIB) - Nursery attendants - Former salaried employees under Belgian law - Change of applicable regime - Equal treatment)

(2007/C 199/89)

Language of the case: French

Parties

Applicants: Sabrina Abarca Montiel (Wauthier–Braine, Belgium) and Others (represented by: L. Vogel, lawyer)

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

Re:

Annulment of the Commission's decision dismissing the applicants' complaints brought against the decisions fixing their grades and remuneration as members of the contract staff.

Operative part of the judgment

The Tribunal:

1.	Annuls the decisions by which the Commission of the European Communities fixed the applicants' remuneration under the contracts for members of the contract staff signed in April 2005;

2.	Dismisses the remainder of the action;

3.	Orders the Commission of the European Communities to bear its own costs and to pay half of the applicants' costs;

4.	Orders the applicants to bear half of their own costs.

(1) OJ C 108, 6.5.2006, p. 33.

25.8.2007

Official Journal of the European Union

C 199/47

Judgment of the Civil Service Tribunal (Second Chamber) of 5 July 2007 — Ider, Desorbay and Noschese v Commission

(Case F-25/06) (1)

(Staff cases - Members of the contract staff - Grading and remuneration - Office for Infrastructure and Logistics Brussels (OIB) - Staff entrusted with executive duties - Former salaried employees under Belgian law - Change of applicable regime - Equal treatment)

(2007/C 199/90)

Language of the case: French

Parties

Applicants: Béatrice Ider (Halle, Belgium), Marie-Claire Desorbay (Meise, Belgium) and Lino Noschese (Braine-le-Château, Belgium) (represented by: L. Vogel, lawyer)

Defendant: Commission of the European Communities (represented by: D. Martin and L. Lozano Palacios)

Re:

Annulment of the Commission's decision dismissing the complaints brought by the applicants against the decisions fixing their grades and remuneration as members of the contract staff.

Operative part of the judgment

The Tribunal:

1.	Annuls the decision by which the Commission of the European Communities fixed Ms Ider's remuneration under a contract for a member of the contract staff signed in April 2005;

2.	Dismisses the remainder of the action;

3.	Orders the Commission of the European Communities to bear its own costs and to pay half of Ms Ider's costs;

4.	Orders Ms Ider to bear half of her own costs;

5.	Orders Ms Desorbay and Mr Noschese to bear their own costs.

(1) OJ C 108, 6.5.2006, p. 34.

25.8.2007

Official Journal of the European Union

C 199/47

Judgment of the Civil Service Tribunal of 5 July 2007 — Bertolete and Others v Commission

(Case F-26/06) (1)

(Officials - Contract staff - Classification and remuneration - Office for Infrastructure and Logistics Brussels (OIB) - Nursery school teachers - Former paid employees under Belgian law - Change of applicable regime - Equal treatment)

(2007/C 199/91)

Language of the case: French

Parties

Applicants: Marli Bertolete (Woluwé-Saint-Lambert, Belgium) and Others (represented by: L. Vogel, lawyer)

Defendant: Commission of the European Communities (represented by: D. Martin and L. Lozano Palacios, acting as Agents)

Re:

Annulment of the Commission decision rejecting the complaints that the applicants had lodged concerning the decisions introduced against the decisions fixing their classification and payment as contract staff

Operative part of the judgment

The Tribunal:

1.	Annuls the decisions by which the Commission of the European Communities fixed the applicants' remuneration on the basis of contract staff contracts signed in April 2005;

2.	Dismisses the remainder of the action;

3.	Orders the Commission of the European Communities to bear its own costs and to pay half of the applicants' costs;

4.	Orders the applicants to bear half of their own costs.

(1) OJ C 108, 6.5.2006, p. 34.

25.8.2007

Official Journal of the European Union

C 199/48

Judgment of the Civil Service Tribunal (Second Chamber) of 5 July 2007 — Dethomas v Commission

(Case F-93/06) (1)

(Staff cases - Former member of the temporary staff - Appointment as an official - Amendment of the Staff Regulations of 1 May 2004 - Third paragraph of Article 32 of the Staff Regulations - Classification by step)

(2007/C 199/92)

Language of the case: French

Parties

Applicant: Bruno Dethomas (Rabat, Morocco) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Commission of the European Communities (represented by: initially V. Joris and H. Kraemer, subsequently H. Kraemer alone)

Re:

Annulment of the Commission's decision of 11 January 2006, appointing the applicant, a member of the temporary staff classified in grade A1*14, step 8, as a probationary official of the European Communities, inasmuch as it fixes his classification in grade A*14, step 2.

Operative part of the judgment

The Tribunal:

1.	Annuls the decision of the Commission of the European Communities of 11 January 2006 inasmuch as it classifies Mr Dethomas, Head of the European Commission Delegation to the Kingdom of Morocco, in grade A*14, step 2;

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

(1) OJ C 237, 30.9.2006, p. 22.

25.8.2007

Official Journal of the European Union

C 199/49

Action brought on 23 March 2007 — Martin v Court of Justice

(Case F-28/07)

(2007/C 199/95)

Language of the case: French

Parties

Applicant: Claire Martin (Luxembourg, Luxembourg) (represented by: D. Martin, lawyer)

Defendant: Court of Justice of the European Communities

Form of order sought

—	annul the Appointing Authority's decision of 4 July 2006 appointing the applicant as a lawyer-linguist probationary official from 16 June 2006, inasmuch as it accorded her grade AD7;

—

order that the applicant be classified in grade A*10 corresponding to grade LA6 before the entry into force on 1 May 2005 of 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), with retroactive effect from the date of her appointment on 16 June 2006;

—	order the full reconstruction of the applicant's career with retroactive effect from the date of her appointment on 16 June 2006;

—	order the defendant to pay the costs.

Pleas in law and main arguments

The applicant relies on very similar pleas in law to those relied on in Case F-37/07 (2).

(1) OJ L 124, 27.4.2004, p. 1.

(2) OJ C 129, 9.6.2007, p. 28.

25.8.2007

Official Journal of the European Union

C 199/49

Action brought on 23 May 2007 — R v Commission

(Case F-49/07)

(2007/C 199/96)

Language of the case: French

Parties

Applicant: R (represented by: O. Martins, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—	declare the application admissible;

—	in so far as is necessary, order the annulment of the Commission's decision of 13 February 2007 dismissing the Applicant's complaint and claim for damages for loss suffered of 8 November 2006 and the decision of 19 December 2005;

—

in so far as is necessary, declare the official's entire probationary period and all the measures produced in that connection void and/or order the annulment of all the preparatory and secondary measures or those which seek to extend the effect of the official's end of probationary period report of 10 January 2005 and, in particular, the so-called intermediate report of 11 August 2004, Ms X's memorandum of 13 April 2005 and Appointing Authority's act of reassignment of 3 March 2005;

—	in so far as is necessary, order the partial annulment of the end of probationary period report of 10 January 2005 for a member of the temporary ‘Research’ staff, finalised on 18 May 2004, relating to the comments introduced by the countersigning officer;

—	in so far as is necessary, order the annulment of Director General DG ADMIN's memorandum of 20 July 2005 dismissing the applicant's request for assistance, pursuant to Article 24 of the Staff Regulations, of 11 November 2004;

—	hold the European Community liable by virtue of all of the contested decisions and measures and the Commission's unlawful conduct towards the applicant;

—	grant the applicant, in any event, damages for loss suffered in the amount of EUR 2 500 000;

—	order the Commission to pay the costs;

—	in so far as is necessary, call on the Commission to take part in conciliation proceedings under Article 7(4) of Annex I to the Statute of the Court of Justice.

Pleas in law and main arguments

The applicant claims that the Commission was guilty of unlawful acts, omissions and failures in the management of personnel amounting to unlawful conduct towards the applicant such as to render that institution liable. According to the applicant, the Commission misused its powers and breached numerous essential procedural requirements, the rights of the defence and the duty to state reasons. Moreover, the contested acts are vitiated by manifest errors of assessment and infringe Article 26 of the Staff Regulations and Regulation No 45/2001 (1), the duty to have regard to the welfare of officials, the duty to assist laid down by Article 24 of the Staff Regulations, the principles of reasonable career prospects and sound administration. Furthermore, the applicant was a victim of psychological harassment.

(1) Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1).

25.8.2007

Official Journal of the European Union

C 199/50

Action brought on 11 June 2007 — Joseph v Commission

(Case F-54/07)

(2007/C 199/97)

Language of the case: French

Parties

Applicant: Anne Joseph (Damascus, Syria) (represented by: N. Lhoëst, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—	annul the contract engaging the applicant, signed on 20 July 2006, inasmuch as its length is fixed at 15 months commencing on 16 October 2006 and expiring on 15 January 2008;

—	to the extent that it is necessary, annul the Commission's express decision of 13 February 2007, rejecting the applicant's complaint lodged, pursuant to Article 90(2) of the Staff Regulations, on 20 October 2006;

—	order the defendant to pay the costs.

Pleas in law and main arguments

The applicant claims annulment of her contract engaging her as a member of the contract staff under Article 3a of the Conditions of Employment of Other Servants (CEOS), inasmuch as its length is fixed not at three years but at 15 months, on the basis, first, of the Commission decision related to the maximum duration for the recourse to non-permanent staff in the Commission services and, second, Article 12 of the General Implementing Provisions related to the procedures governing the engagement and employment of members of the temporary staff of the Commission (GIP).

According to the applicant, the decision of 28 April 2004, particularly Article 3 thereof, is unlawful, inasmuch as it is contrary to the first paragraph of Article 85(1) of the CEOS. In any event, under Article 1(2) thereof, that decision is not applicable to the present case, in view of the fact that the applicant is engaged in essential tasks.

The applicant alleges, in addition, the unlawfulness of the GIP, in particular Article 12 thereof, which she alleges is contrary to Article 85(1) of the CEOS. In any event, the Commission infringed Article 12(1a) and (1b) of the GIP, which do not allow; for the purposes of calculating the maximum period of employment of a member of the contract staff, the cumulation of the period of a contract under Article 3b of the CEOS with that of a contract under Article 3a of the CEOS.

The applicant relies, in addition, on the infringement of the principles of non-discrimination, sound administration and the interest of the service.

25.8.2007

Official Journal of the European Union

C 199/50

Action brought on 16 June 2007 — Collotte v Commission

(Case F-58/07)

(2007/C 199/98)

Language of the case: French

Parties

Applicant: Pascal Collotte (Overijse, Belgium) (represented by: E. Boigelot, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—	annul the decision taken not to include the applicant's name on the promotions list for promotion from A11 to A12 for the ‘2006 promotion exercise’ and, consequently, annul the decision not to promote him, as published in Administrative Notices No 55-2006 of 17 November 2006;

—	order the defendant to pay, as damages for pecuniary and non-pecuniary loss and in respect of the adverse effect on the applicant's career, the sum of EUR 25 000, subject to any increase or decrease in the course of the proceedings;

—	order the defendant to pay the costs.

Pleas in law and main arguments

The applicant — a former member of the temporary staff who was appointed an official in grade A*11 from 16 April 2004, following his success in an internal competition — was considered ineligible for promotion under the 2006 promotion exercise, because (i) he had not demonstrated his ability to work in a third language, in accordance with Article 45(2) of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) and (ii) he was not entitled to benefit from the exception designed for officials who already had two years' experience in their existing grade as at 1 April 2006.

In support of his action, the applicant relies on four pleas in law, the first of which alleges breach of Article 45 of the Staff Regulations and that the administration committed manifest errors of assessment. In particular, the applicant submits that, under the transitional provisions of Article 11 of Annex XIII to the Staff Regulations, Article 45(2) of the Staff Regulation ought not to have been applied to the 2006 promotion exercise, especially since the rules for implementing that provision were finalised only in December 2006. As it was not until August 2006 that the applicant was informed that the provision at issue applied to his case, he maintains that he did not have access to the training necessary to enable him to acquire the ability to work in a third language within a reasonable period of time.

The second plea in law alleges breach of the duty to have regard to the welfare of officials, infringement of the principles of good administration and sound management and the existence of a misuse of powers. The applicant submits in particular that the administration did not have the right to apply Article 45(2) of the Staff Regulations to him at the last minute.

The third plea in law alleges infringement of the principles of protection of legitimate expectations and legal certainty. The Commission's departments, the applicant submits, gave him precise and consistent assurances as to the non-applicability to his case of the new requirement imposed by Article 45(2) of the Staff Regulations.

The fourth plea alleges infringement of the principles of equal treatment of staff, non-discrimination and proportionality. The applicant claims that he was placed at a disadvantage in relation to other members of the temporary staff, who, following success in an internal competition entitling them to establishment, had already been appointed officials by 1 April 2004, unlike the applicant.

25.8.2007

Official Journal of the European Union

C 199/51

Action brought on 15 June 2007 — Feral v Committee of the Regions

(Case F-59/07)

(2007/C 199/99)

Language of the case: French

Parties

Applicant: Pierre-Alexis Feral (Brussels, Belgium) (represented by: M.-A. Lucas, lawyer)

Defendant: Committee of the Regions of the European Union (CoR)

Form of order sought

—	annul the decision of the Administration Director and the Secretary General of the CoR of 26 July 2006 to recover the amounts paid to the applicant in application of the correction coefficient for that part of his remuneration transferred to France between March 2003 and May 2005;

—	annul the decision of 4 December 2006 of the Administration Director of CoR fixing that amount at EUR 3 600,16;

—	order the CoR to repay to the applicant the sum of EUR 3 600,16, plus default interest at the rate of 8 % per annum from the date of the recovery until payment in full;

—

order the CoR to pay to the applicant the amount which should have been paid to him if the correct correction coefficient had been applied to the part of his remuneration which should have been transferred to France from June 2005, plus default interest at the rate of 8 % per annum from the date of the recovery until payment in full;

—	order the CoR to resume, from the date of the future judgment, the transfer of part of the applicant's remuneration to France, with the correction coefficient applicable to that country;

—	order the CoR to pay the costs.

Pleas in law and main arguments

The first plea in law alleges infringement of (i) Article 85 of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’), (ii) the final indent of the second paragraph of Article 2 of the Rules laying down the procedure for the transfer of part of an official's emoluments (‘the Common Rules’) and (iii) paragraphs 2 and 4 of Conclusion No 204/92 of the Heads of Administration of 3 December 1992. According to the applicant, the CoR could not hold that he was not entitled, pursuant to Article 17(2) of Annex VII to the Staff Regulations, to have part of his remuneration transferred to his building savings account in France on the ground that he had, through transfers to a deposit account, brought his building savings account once more below the maximum amount which could be saved. In particular, he submits that (i) the Common Rules do not require that transfers correspond to obligatory payments and (ii) bringing the building savings account below the maximum limit in this way is an established banking practice which complies with French law on building savings accounts, as referred to by the Conclusion of the Administrative Heads.

The second plea in law alleges infringement of Article 85 of the Staff Regulations inasmuch as the CoR found that the irregularity of the transfers at issue was so apparent that, in view of his legal qualifications, the applicant was or, at the very least, ought to have been aware of it. In that respect, the applicant considers that: (i) in the light of the Conclusion of the Heads of Administration, the building savings account which he opened appeared to correspond to the concept of ‘building savings contract’ for the purposes of the Common Rules; (ii) bringing the building savings account below the maximum limit in the way he did appeared to comply with those rules; (iii) following reviews in December 2003 and December 2004, his personnel file appeared to be complete and in order; (iv) having only restricted access to his personnel file, he was not in a position to consult the necessary documents in order to review whether the transfers were in order.

25.8.2007

Official Journal of the European Union

C 199/52

Action brought on 18 June 2007 — Martin Bermejo v Commission

(Case F-60/07)

(2007/C 199/100)

Language of the case: French

Parties

Applicant: Joaquin Martin Bermejo (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	declare the unlawfulness of the Commission decision of 28 April 2004 adopting the new General Implementing Provisions of Article 11 and 12 of Annex VIII to the Staff Regulations and, to the extent that it is necessary, the unlawfulness of those provisions of the Staff Regulations;

—	annul the Commission decision of 27 September 2006 inasmuch as it fixes the calculation of credited pension rights transferred by the applicant to the Community pension scheme;

—	order the defendant to pay the costs.

Pleas in law and main arguments

The applicant pleads the unlawfulness of the General Implementing Provisions of Article 11 and 12 of Annex VIII to the Staff Regulations on the transfer of pension rights (1), inasmuch as the rule set out in Article 7(3) thereof infringes Council Regulation (EC) No 1103/97 of 17 June 1997 on certain provisions relating to the introduction of the euro (2) and the principle of equal treatment, as interpreted by the Civil Service Tribunal in its judgment of 14 November 2006 in Case F-100/05 Chatziioannidou v Commission (not yet published).

(1) Administrative Notice No 60/2004 of 9 June 2004.

(2) OJ 1997 L 162, p. 1.

25.8.2007

Official Journal of the European Union

C 199/52

Action brought on 18 June 2007 — Bauch v Commission

(Case F-61/07)

(2007/C 199/101)

Language of the case: German

Parties

Applicant: Gerhard Bauch (Berlin, Germany) (represented by: W. Uhlmann, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—

Direct the defendant to amend its certificate of 12 March 2003 or, alternatively, to issue further confirmation to the applicant to the effect that the amount repaid to the applicant does not amount to a severance grant by way of compensation for retirement pension rights or, therefore, to a retirement pension or the equivalent of a retirement pension;

—	order the defendant to pay the costs.

Pleas in law and main arguments

The applicant was employed by the Commission of the European Communities as a member of the temporary staff. He was granted unpaid leave for that period of employment from his post as an official of the then Federal Ministry of Economics. The Ministry reduced the applicant's retirement pension because of the cumulation of pension benefits and a pension from international and supranational employment, as the Commission of the European Communities had issued the applicant with a certificate concerning the payment of a severance grant in compensation for pension rights.

The applicant complains that the Commission's certificate is defective inasmuch as members of the temporary staff cannot acquire pension rights owing to the short period of service (Articles 77 to 84 of the Staff Regulations), and the applicant was thus merely refunded the pension fund contributions that had been deducted.

25.8.2007

Official Journal of the European Union

C 199/53

Action brought on 20 June 2007 — De Fays v Commission

(Case F-62/07)

(2007/C 199/102)

Language of the case: French

Parties

Applicant: Chantal De Fays (Brussels, Belgium) (represented by: P. -P. Guhuchten and Ph. Reyniers, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	annul the Commission's decision of 16 March 2007 dismissing the Applicant's pre-litigation claim for damages;

—	order the Commission to pay the amount of EUR 25 000;

—	order the Commission to pay the costs.

Pleas in law and main arguments

The applicant brought a complaint against the Authorising Authority's decision of 15 September 2006 awarding her damages of EUR 500 only as compensation for non-material loss suffered as a result of the drawing up of her Career Development Reports (CDR) for 2003, 2004 and 2005. By the contested decision the Authorising Authority dismissed that complaint.

In support of her action, the applicant submits that the procedures for drawing up the CDR at issue were late and created a state of uncertainty as to the development of her career. Moreover, the repetition in each of the CDRs of allegedly hurtful and inappropriate content gave rise to non-material damage. The Commission failed to respect the obligations placed on it by the principles of respect for human dignity, sound administration, the duty to have regard to the welfare of officials and, by analogy, the Community rules applicable to harassment at work (1).

(1) Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (OJ 2006 L 204, p. 23); Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services (OJ 2004 L 373, p. 37); Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 2002 L 269, p. 15).

25.8.2007

Official Journal of the European Union

C 199/53

Action brought on 28 June 2007 — S v European Parliament

(Case F-64/07)

(2007/C 199/103)

Language of the case: Italian

Parties

Applicant: S (represented by: R. Mastroianni and F. Ferraro, lawyers)

Defendant: European Parliament

Form of order sought

—	annul Decision No 305747 of the European Parliament of 29 March 2007 rejecting his complaint;

—	annul the European Parliament's decision of 27 July 2006 reassigning him to Brussels and appointing him adviser to the Director General for Information;

—	annul all acts, previous, concomitant or consequential, and in any way connected;

—	order the European Parliament to indemnify the loss sustained as a result of that decision, in the sum of EUR 400 000 or such greater or lesser sum as the Court may think fit;

—	order the European Parliament to pay the costs.

Pleas in law and main arguments

In support of his action the applicant puts forward seven pleas in law which may be summarised as follows:

1.	the decision to reassign him was unlawful for lack of reasoning explaining why the Parliament had decided to transfer the applicant to its seat in Brussels;

the decision to reassign him, involving the removal of a seriously sick person to a distant place, was contrary to the fundamental right to health enshrined in Articles 3(p) and 152 EC, and in Article 35 of the Charter of Fundamental Rights of the European Union. Protecting the applicant's health ought to have prevailed over the interests of the service;

the Parliament breached its duty to have regard to the welfare of officials, and the principles of proper administration, impartiality, transparency and legal certainty. As a matter of fact, the institution failed to carry out, before adopting the decision to reassign the applicant, an adequate investigation of the hostile attitudes with which the applicant was confronted or to have the effects of such a decision on his health evaluated from a medical point of view;

4.	the decision to reassign him, which was in essence a penalty, was unreasonable and disproportionate in relation to the matters for which the Parliament holds him responsible, especially as he suffers from a serious disease and is close to the age of retirement;

5.	the Parliament, having failed to pay particular attention to the applicant's situation on account of his health, has contravened the principles of equal treatment and ‘neminem laedere’ (do harm to no one);

by adopting the decision to reassign him the Parliament used its own powers to punish the applicant and to bring about the early termination of the employment relationship, so committing a misuse of power and an abuse of process, and also infringing Articles 7 and 86 of the Staff Regulations of Officials of the European Communities and of Annex IX thereto;

7.	the applicant was not placed in a position in which he could express his point of view on the decision under discussion to reassign him to Brussels, in breach of his rights of the defence.

		ISSN 1725-2423
Official Journal of the European Union		C 199

English edition	Information and Notices	Volume 50 25 August 2007

Notice No	Contents	page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES
	Court of Justice
2007/C 199/01	Last publication of the Court of Justice in the Official Journal of the European Union OJ C 183, 4.8.2007	1