ISSN 1725-2423

Official Journal

of the European Union

C 315
European flag  

English edition

Information and Notices

Volume 50
22 December 2007

Notice No

Contents

page

 

IV   Notices

 

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

 

Court of Justice

2007/C 315/01

Last publication of the Court of Justice in the Official Journal of the European Union
OJ C 297, 8.12.2007

1

 

V   Announcements

 

COURT PROCEEDINGS

 

Court of Justice

2007/C 315/02

Case C-507/03: Judgment of the Court (Grand Chamber) of 13 November 2007 — Commission of the European Communities v Ireland (Public procurement — Articles 43 EC and 49 EC — Directive 92/50/EEC — Award of a public contract to the Irish postal service An Post without a prior contract notice — Certain cross-border interest — Transparency)

2

2007/C 315/03

Case C-273/04: Judgment of the Court (Grand Chamber) of 23 October 2007 — Republic of Poland v Council of the European Union (Action for annulment — Council Decision 2004/281/EC — Common agricultural policy — Act concerning the conditions of accession to the European Union — Adaptation — Infringement of principle of non-discrimination)

2

2007/C 315/04

Case C-334/04: Judgment of the Court (Second Chamber) of 25 October 2007 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 79/409/EEC — Annex I — Conservation of wild birds — Special protection areas — IBA 2000 — Value — Quality of the data — Criteria — Margin of discretion — Manifestly insufficient classification — Wetlands)

3

2007/C 315/05

Case C-19/05: Judgment of the Court (Third Chamber) of 18 October 2007 — Commission of the European Communities v Kingdom of Denmark (Failure of a Member State to fulfil obligations — Communities' own resources — Customs duties legally owed not recovered following an error by the national customs authorities — Financial liability of the Member States)

4

2007/C 315/06

Case C-20/05: Judgment of the Court (Third Chamber) of 8 November 2007 (reference for a preliminary ruling from the Tribunale di Forlì — Italy) — Criminal proceedings against Karl Josef Wilhelm Schwibbert (Directive 98/34/EC — Procedure for the provision of information in the field of technical standards and regulations — Obligation to communicate draft technical regulations — National law requiring the distinctive sign of the national body responsible for collecting copyright royalties to be affixed to compact discs placed on the market — Definition of technical regulation)

4

2007/C 315/07

Case C-62/05 P: Judgment of the Court (First Chamber) of 18 October 2007 — Nordspedizionieri di Danielis Livio & C. Snc, in liquidation, Domenico D'Alessandro v Commission of the European Communities (Appeal — Regulation (EEC) No 1430/79 — Remission of import duties — Consignment of cigarettes destined for Spain — Fraud committed in a Community transit operation)

5

2007/C 315/08

Case C-112/05: Judgment of the Court (Grand Chamber) of 23 October 2007 — Commission of the European Communities v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Article 56 EC — Legislative provisions concerning the public limited company Volkswagen)

5

2007/C 315/09

Case C-141/05: Judgment of the Court (Third Chamber) of 8 November 2007 — Kingdom of Spain v Council of the European Union (Fisheries — Regulation (EC) No 27/2005 — Allocation of catch quotas among Member States — Act of Accession of the Kingdom of Spain — End of the transitional period — Requirement of relative stability — Principle of non-discrimination — New fishing opportunities — Admissibility)

6

2007/C 315/10

Case C-248/05: Judgment of the Court (Second Chamber) of 25 October 2007 — Commission of the European Communities v Ireland (Failure of a Member State to fulfil its obligations — Protection of underground water against pollution caused by hazardous substances — Directive 80/68/EEC)

6

2007/C 315/11

Case C-374/05: Judgment of the Court (Second Chamber) of 8 November 2007 (reference for a preliminary ruling from the Bundesgerichtshof (Germany)) — Gintec International Import-Export GmbH v Verband Sozialer Wettbewerb eV (Directives 2001/83/EC and 92/28/EEC — National legislation prohibiting advertising of medicinal products by way of statements of third parties or prize draws — Use of generally positive results of a consumer survey and a monthly prize draw to win a pack of the product)

7

2007/C 315/12

Case C-379/05: Judgment of the Court (First Chamber) of 8 November 2007 (reference for a preliminary ruling from the Gerechtshof te Amsterdam — Netherlands) — Amurta S.G.P.S v Inspecteur van de Belastingdienst (Articles 56 EC to 58 EC — Free movement of capital — National tax legislation providing for exemption of shareholdings from corporation tax — Taxation of dividends — Withholding tax — Exemption from withholding tax — Application to companies receiving dividends with a seat or permanent establishment in the Member State granting the exemption and whose shareholdings benefit from exemption from corporation tax — Refusal to apply the exemption from withholding tax to dividends distributed to a recipient company not having a seat or a permanent establishment in that Member State)

8

2007/C 315/13

Case C-403/05: Judgment of the Court (Grand Chamber) of 23 October 2007 — European Parliament v Commission of the European Communities (Action for annulment — Commission decision approving a project relating to border security in the Philippines — Decision adopted on the basis of Regulation (EEC) No 443/92 — Commission's implementing powers — Limits)

8

2007/C 315/14

Case C-427/05: Judgment of the Court (Fourth Chamber) of 25 October 2007 (reference for a preliminary ruling from the Commissione tributaria regionale di Genova (Italy)) — Agenzia delle Entrate — Ufficio di Genova 1 v Porto Antico di Genova SpA (Structural Funds — Regulation (EEC) No 4253/88 — Second subparagraph of Article 21(3) — Prohibition of deduction — Calculation of taxable income — Taking account of Community grants received)

9

2007/C 315/15

Case C-440/05: Judgment of the Court (Grand Chamber) of 23 October 2007 — Commission of the European Communities v European Parliament (Action for annulment — Articles 31(1)(e) EU, 34 EU and 47 EU — Framework Decision 2005/667/JHA — Enforcement of the law against ship-source pollution — Criminal penalties — Community competence — Legal basis — Article 80(2) EC)

9

2007/C 315/16

Case C-457/05: Judgment of the Court (Fourth Chamber) of 4 October 2007 (reference for a preliminary ruling from the Landgericht Wiesbaden — Germany) — Schutzverband der Spirituosen-Industrie eV v Diageo Deutschland GmbH (Free movement of goods — Directive 75/106/EEC — Approximation of the laws of the Member States — Liquids in prepackages — Making up by volume — Article 5(3)(b) and (d) — Baileys Minis — Marketing in prepackages with a nominal volume of 0,071 litre)

10

2007/C 315/17

Case C-464/05: Judgment of the Court (Fourth Chamber) of 25 October 2007 (reference for a preliminary ruling from the Rechtbank van eerste aanleg te Hasselt — Belgium) — Maria Geurts, Dennis Vogten v Administratie van de BTW, registratie en domeinen, Belgische Staat (Articles 43 EC and 56 EC — National tax legislation — Inheritance tax — Family company — Exemption — Conditions — Employment of a certain number of workers in a region of a Member State)

11

2007/C 315/18

Joined Cases C-11/06 and C-12/06: Judgment of the Court (Grand Chamber) of 23 October 2007 (references for a preliminary ruling from the Verwaltungsgericht Aachen (Germany)) — Rhiannon Morgan (C-11/06) v Bezirksregierung Köln, Iris Bucher (C-12/06) v Landrat des Kreises Düren (Citizenship of the Union — Articles 17 EC and 18 EC — Refusal to award an education or training grant to nationals of Member States pursuing their studies in another Member State — Requirement of continuation between studies pursued in another Member State and those pursued previously for at least one year in an establishment in the student's Member State of origin)

11

2007/C 315/19

Case C-97/06: Judgment of the Court (Fourth Chamber) of 18 October 2007 (reference for a preliminary ruling from the Tribunal Superior de Justicia de Madrid — Spain) — Navicon SA v Administración del Estado (Sixth VAT Directive — Exemptions — Article 15(5) — The concept of chartering sea-going vessels — Compatibility of a national law allowing the exemption for full chartering only)

12

2007/C 315/20

Case C-143/06: Judgment of the Court (Second Chamber) of 8 November 2007 (reference for a preliminary ruling from the Landgericht Hamburg (Germany)) — Ludwigs-Apotheke München Internationale Apotheke v Juers Pharma Import-Export GmbH (Free movement of goods — Articles 28 EC and 30 EC — Articles 11 and 13 of the EEA Agreement — Imported medicinal products not authorised in the importing State — Prohibition of advertising — Directive 2001/83/EC)

12

2007/C 315/21

Case C-167/06 P: Judgment of the Court (Fourth Chamber) of 25 October 2007 — Ermioni Komninou, Grigorios Ntokos, Donatos Pappas, Vassileios Pappas, Aristeidis Pappas, Eleftheria Pappa, Lamprini Pappa, Eirini Pappa, Alexandra Ntokou, Fotios Dimitriou, Zoï Dimitriou, Petros Bolossis, Despoina Bolossi and Konstantinos Bolossis, Thomas Bolossis v Commission of the European Communities (Appeal — Non-contractual liability of the Community — Complaint under Article 226 EC — Treatment of complainants by the Commission — Principles of sound administration, legitimate expectations and legal certainty — Scope — Article 21 EC — Right of complaint — Scope of the Ombudsman's findings)

13

2007/C 315/22

Case C-173/06: Judgment of the Court (Third Chamber) of 18 October 2007 (reference for a preliminary ruling from the Commissione tributaria regionale di Genova (Italy)) — Agrover Srl v Agenzia Dogane Circoscrizione Doganale di Genova (Community Customs Code — Inward processing — Association agreement — Prior exportation of rice to a non-member country bound by a preferential customs agreement — Article 216 of the Customs Code — Subsequent recovery of import duties — Article 220(2)(b) of the Customs Code)

14

2007/C 315/23

Case C-174/06: Judgment of the Court (Second Chamber) of 25 October 2007 (reference for a preliminary ruling from the Corte Suprema di Cassazione — Italy) — Ministero delle Finanze v CO.GE.P. Srl (Sixth Directive — VAT — Exempted transactions — Leasing or letting of immovable property — Property owned by the State)

14

2007/C 315/24

Case C-195/06: Judgment of the Court (Fourth Chamber) of 18 October 2007 (reference for a preliminary ruling from the Bundeskommunikationssenat (Austria)) — Kommunikationsbehörde Austria (KommAustria) v Österreichischer Rundfunk (ORF) (Freedom to provide services — Television broadcasting activities — Directives 89/552/EEC and 97/36/EC — Definition of teleshopping and television advertising — Prize game)

15

2007/C 315/25

Case C-221/06: Judgment of the Court (First Chamber) of 8 November 2007 (reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria)) — Stadtgemeinde Frohnleiten, Gemeindebetriebe Frohnleiten GmbH v Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft (Reference for a preliminary ruling — Levy on the long-term depositing of waste at a waste disposal site — Levy payable by the operator of the waste disposal site and calculated according to the weight of the waste being deposited and the state of the waste disposal site — Exemption from the levy in respect of the deposit of waste from contaminated sites in Austria — No exemption for the deposit of waste from contaminated sites located in other Member States — Article 90 EC — Internal taxation — Discrimination)

16

2007/C 315/26

Case C-238/06 P: Judgment of the Court (Eighth Chamber) of 25 October 2007 — Develey Holding GmbH & Co. Beteiligungs KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Three-dimensional mark — Shape of a plastic bottle — Refusal to register — Absolute grounds for refusal — Lack of distinctive character — Earlier national trade mark — Paris Convention — TRIPs Agreement — Article 7(1)(b) of Regulation (EC) No 40/94)

16

2007/C 315/27

Case C-240/06: Judgment of the Court (First Chamber) of 25 October 2007 (reference for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — Fortum Project Finance SA (Article 56(1) EC — Directive 69/335/EEC — Article 12(1)(a) and (c) — Exception to the prohibition on double taxation of contributions of capital — Contribution of capital in the form of shares to a company established in another Member State — Exchange of shares — Capital transfer tax)

17

2007/C 315/28

Case C-251/06: Judgment of the Court (Fourth Chamber) of 8 November 2007 (reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Linz, Austria) — Firma Ing. Auer — Die Bausoftware GmbH v Finanzamt Freistadt Rohrbach Urfahr (Indirect taxes — Raising of capital — Transfer of the seat of a company — Abolition of the capital duty charged to a company)

17

2007/C 315/29

Joined Cases C-260/06 and C-261/06: Judgment of the Court (Fourth Chamber) of 8 November 2007 (references for a preliminary ruling from the Cour d'appel de Montpellier, France) — Criminal proceedings against Daniel Escalier (C-260/06), Jean Bonnarel (C-261/06) (Plant protection products — Parallel imports — Marketing authorisation procedure — Whether permissible — Conditions — Observance of the principle of proportionality)

18

2007/C 315/30

Case C-344/06 P: Judgment of the Court (Fourth Chamber) of 25 October 2007 — J.C. Blom v Council of the European Union, Commission of the European Communities (Appeal — Action for damages — Non-contractual liability — Milk — Additional levy — Reference quantity — Producers who entered into a non-marketing undertaking — SLOM 1983 producers — Failure to resume production on expiry of the undertaking)

18

2007/C 315/31

Case C-355/06: Judgment of the Court (Second Chamber) of 18 October 2007 (reference for a preliminary ruling from the Gerechtshof te Amsterdam (Netherlands)) — J.A. van der Steen v Inspector van de Belastingdienst Utrecht-Gooi/kantoor Utrecht (Sixth VAT Directive — Independent economic activity — Private limited company — Company's activities carried out by a natural person as sole director, sole shareholder and sole member of staff)

19

2007/C 315/32

Case C-440/06: Judgment of the Court (Fifth Chamber) of 25 October 2007 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 91/271/EEC — Pollution and nuisance — Treatment of urban waste water — Articles 3 and 4)

19

2007/C 315/33

Case C-441/06: Judgment of the Court (Fourth Chamber) of 18 October 2007 — Commission of the European Communities v French Republic (State aid — Duty of recovery — Duty of cooperation)

20

2007/C 315/34

Case C-464/06: Judgment of the Court (Third Chamber) of 18 October 2007 (reference for a preliminary ruling from the Korkein hallinto-oikeus, Finland) — Proceedings brought by Avena Nordic Grain Oy (Agriculture — System of export refunds on agricultural products — Regulation (EC) No 800/1999 — Article 5 — Lodging the export declaration — Transmission by fax)

20

2007/C 315/35

Case C-3/07: Judgment of the Court (Eighth Chamber) of 8 November 2007 — Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Directive 2003/110/EC — Assistance in cases of transit — Removal by air — Failure to transpose within the period prescribed)

21

2007/C 315/36

Case C-40/07: Judgment of the Court (Eighth Chamber) of 8 November 2007 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 2001/42/EC — Assessment of the effects of certain plans and programmes on the environment — Failure to transpose within the period prescribed)

21

2007/C 315/37

Case C-60/07: Judgment of the Court (Seventh Chamber) of 8 November 2007 — Commission of the European Communities v Czech Republic (Failure of a Member State to fulfil obligations — Directive 2004/33/EC — Technical requirements for blood and blood components — Failure to transpose within the period prescribed)

22

2007/C 315/38

Case C-75/07: Judgment of the Court (Sixth Chamber) of 8 November 2007 — Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Directive 2004/28/EC — Veterinary medicinal products — Failure to transpose within the period prescribed)

22

2007/C 315/39

Case C-114/07: Judgment of the Court (Eighth Chamber) of 25 October 2007 — Commission of the European Communities v Czech Republic (Failure of a Member State to fulfil obligations — The Community code relating to medicinal products for human use — Directive 2004/24/EC — Traditional herbal medicinal products — Failure to transpose within the prescribed period)

23

2007/C 315/40

Case C-224/07: Judgment of the Court (Sixth Chamber) of 8 November 2007 — Commission of the European Communities v Grand Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2004/49/EC — Safety on the Community's railways — Incomplete transposition)

23

2007/C 315/41

Case C-301/05 P: Order of the Court of 11 October 2007 — Hans Peter Wilfer v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Word sign ROCKBASS — Refusal to register — No need to adjudicate)

24

2007/C 315/42

Case C-225/06: Order of the Court (Eighth Chamber) of 11 September 2007 — Athinaiki Oikogeniaki Artopoiia AVEE v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Ferrero Deutschland GmbH (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Similarity between two trade marks — Likelihood of confusion — Application for a Community figurative mark featuring the word element FERRÓ — Opposition by the proprietor of the national word mark FERRERO — Partial refusal of registration)

24

2007/C 315/43

Case C-100/07 P: Order of the Court of 4 October 2007 — É.R. and Others v Council of the European Union, Commission of the European Communities (Appeal — Non-contractual liability of the Community — Bovine spongiform encephalopathy — Lack of adequate measures taken by the Council and the European Commission to prevent the spread of the disease — Appeal manifestly unfounded)

24

2007/C 315/44

Case C-439/07: Reference for a preliminary ruling from the Hof van Beroep te Brussel — Belgium lodged on 24 September 2007 — Belgische Staat v KBC Bank NV

25

2007/C 315/45

Case C-456/07: Reference for a preliminary ruling from the Najvyšší súd Slovenskej republiky lodged on 9 October 2007 — Karol Mihal v Daňový úrad Košice V

26

2007/C 315/46

Case C-460/07: Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 11 October 2007 — Sandra Puffer v Unabhängiger Finanzsenat, Außenstelle Linz

26

2007/C 315/47

Case C-467/07: Reference for a preliminary ruling from the Monomeles Protodikio Livadias (Livadia Court of First Instance) lodged on 22 October 2007 — Panagiotis Koskovolis and Ekaterini Pappa v Municipality of Kiriaki, Beotia

27

2007/C 315/48

Case C-470/07: Action brought on 24 October 2007 — Commission of the European Communities v Hellenic Republic

29

2007/C 315/49

Case C-480/07: Action brought on 31 October 2007 — Commission of the European Communities v Kingdom of Spain

29

2007/C 315/50

Case C-490/07: Action brought on 7 November 2007 — Commission of the European Communities v Republic of Cyprus

30

2007/C 315/51

Case C-493/07: Action brought on 9 November 2007 — Commission of the European Communities v Slovak Republic

30

2007/C 315/52

Case C-175/06: Order of the President of the Fourth Chamber of the Court of 27 September 2007 (reference for a preliminary ruling from the Tribunale Civile Di Genova — Italy) — Alessandro Tedesco v Tomasoni Fittings SrL, RWO Marine Equipment Ltd

31

2007/C 315/53

Case C-426/06: Order of the President of the Eighth Chamber of the Court of 21 September 2007 — Commission of the European Communities v Hellenic Republic

31

2007/C 315/54

Case C-530/06: Order of the President of the Court of 22 October 2007 — Commission of the European Communities v Italian Republic

31

2007/C 315/55

Case C-21/07: Order of the President of the Court of 8 October 2007 — Commission of the European Communities v Ireland

31

2007/C 315/56

Case C-29/07: Order of the President of the Court of 19 July 2007 — Commission of the European Communities v Hellenic Republic

31

2007/C 315/57

Case C-53/07: Order of the President of the Court of 19 July 2007 — Commission of the European Communities v Hellenic Republic

32

2007/C 315/58

Case C-64/07: Order of the President of the Court of 8 October 2007 — Commission of the European Communities v Ireland

32

2007/C 315/59

Case C-77/07: Order of the President of the Court of 2 August 2007 — Commission of the European Communities v Hellenic Republic

32

2007/C 315/60

Case C-83/07: Order of the President of the Court of 20 September 2007 — Commission of the European Communities v Hellenic Republic

32

 

Court of First Instance

2007/C 315/61

Case T-38/04: Judgment of the Court of First Instance of 15 November 2007 — Sunplus Technology v OHIM — Sun Microsystems (SUN PLUS) (Community trade mark — Opposition proceedings — Application for figurative mark SUNPLUS — Earlier national word mark SUN — Likelihood of confusion — Similarity between goods — Similarity between marks)

33

2007/C 315/62

Case T-194/04: Judgment of the Court of First Instance of 8 November 2007 — Bavarian Lager v Commission (Access to documents — Regulation (EC) No 1049/2001 — Documents relating to proceedings for failure to fulfil obligations — Decision refusing access — Protection of physical persons in relation to processing of personal data — Regulation (EC) No 45/2001 — Concept of private life)

33

2007/C 315/63

Case T-234/04: Judgment of the Court of First Instance of 8 November 2007 — The Netherlands v Commission (Action for annulment — Decision 2004/01/EC — Dangerous substances — Authorisation by the Commission required to maintain notified national provisions — Position adopted by the Commission on the extent of harmonisation — Challengeable act — Inadmissibility)

34

2007/C 315/64

Case T-374/04: Judgment of the Court of First Instance of 7 November 2007 — Germany v Commission (Environment — Directive 2003/87/EC — Scheme for greenhouse gas emission allowance trading — German national allocation plan for emission allowances — Measures for the ex-post adjustment of the amount of allowances allocated to installations — Commission rejection decision — Equal treatment — Duty to state reasons)

34

2007/C 315/65

Case T-90/05: Judgment of the Court of First Instance of 6 November 2007 — Omega v OHIM — Omega Engineering (Ω OMEGA) (Community trade mark — Opposition proceedings — Application for the figurative and word Community trade mark Ω OMEGA — Earlier national word mark OMEGA — Relative ground for refusal — Reliance by the applicant for the Community trade mark on a national trade mark identical to that applied for and earlier than the national mark cited in opposition — Likelihood of confusion)

35

2007/C 315/66

Case T-407/05: Judgment of the Court of First Instance of 6 November 2007 — SAEME v OHIM — Racke (REVIAN's) (Community trade mark — Opposition proceedings — Application for figurative Community trade mark REVIAN's — Earlier non-Community trade mark evian — Late submission of the translation of the registration certificate for an earlier mark — Discretion granted by Article 74(2) of Regulation (EC) No 40/94)

35

2007/C 315/67

Case T-459/05: Judgment of the Court of First Instance of 8 November 2007 — MPDV Mikrolab v OHIM (manufacturing score card) (Community trade mark — Community trade mark application in respect of manufacturing score card word mark — Absolute grounds for refusal — Descriptiveness — Lack of distinctive character — Article 7(1)(b) and (c) of Regulation(EC) No 40/94)

36

2007/C 315/68

Case T-28/06: Judgment of the Court of First Instance of 6 November 2007 — RheinfelsQuellen H. Hövelmann v OHIM (VOM URSPRUNG HER VOLLKOMMEN) (Community trade mark — Application for the Community word mark VOM URSPRUNG HER VOLLKOMMEN — Absolute grounds for refusal — Descriptive character — Article 7(1)(b) and 7(1)(c) of Regulation (EC) No 40/94)

36

2007/C 315/69

Case T-57/06: Judgment of the Court of First Instance of 7 November 2007 — Marly v OHIM — Erdal (Top iX) (Community trade mark — Opposition proceedings — Application for figurative Community trade mark Top iX — Earlier international word mark TOFIX — Relative ground for refusal — Absence of likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 — Request for proof of genuine use of the earlier mark submitted for the first time before the Court — Inadmissibility)

37

2007/C 315/70

Case T-71/06: Judgment of the Court of First Instance of 15 November 2007 — Enercon v OHIM (Wind turbine) (Community trade mark — Application for a three-dimensional Community trade mark depicting the outer casing of the nacelle of a wind turbine — Absolute grounds for refusal — Lack of distinctive character — Article 7(1)(b) and (3) of Regulation (EC) No 40/94)

37

2007/C 315/71

Case T-101/06: Judgment of the Court of First Instance of 14 November 2007 — Castell del Remei v OHIM — Bodegas Roda (Castell del Remei ODA) (Community trade mark — Opposition proceedings — Application for figurative Community trade mark Castell del Remei ODA — Earlier international word mark RODA and earlier national trade marks RODA, RODA I, RODA II and BODEGAS RODA — Absolute ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

38

2007/C 315/72

Case T-169/06: Judgment of the Court of First Instance of 8 November 2007 — Charlott v OHIM — Charlo (Charlott France Entre Luxe et Tradition) (Community trade mark — Opposition proceedings — Application for figurative Community trade mark Charlott France Entre Luxe et Tradition — Earlier figurative national mark Charlot — Genuine use of the earlier mark — Article 43(2) and (3) of Regulation (EC) No 40/94)

38

2007/C 315/73

Case T-310/06: Judgment of the Court of First Instance of 15 November 2007 — Hungary v Commission of the European Communities (Agriculture — Common organisation of the markets in cereals — Taking-over of cereals by intervention agencies — Upgrading of the criteria of the quality for maize — Introduction of a new criterion of specific weight for maize — Breach of the principle of protection of legitimate expectations — Manifest error of assessment)

39

2007/C 315/74

Case T-69/05: Order of the Court of First Instance of 19 October 2007 — Evropaïki Dynamiki v EFSA (No need to adjudicate — Public procurement — European Food Safety Authority (EFSA) — Cancellation of the call for tenders — Action which has become devoid of purpose)

39

2007/C 315/75

Case T-454/05: Order of the Court of First Instance of 17 October 2007 — Sumitomo Chemical Agro Europe and Philagro France v Commission (Plant protection products — Active substance procymidone — Directive 91/414/EEC — Action for annulment — Action for failure to act — No need to adjudicate — Action for damages — Inadmissibility — Action manifestly unfounded)

40

2007/C 315/76

Case T-238/07 R: Order of the Judge (Interim measures) of 18 October 2007 — Ristic and Others v Commission (Interim measures — Application for stay of execution — Directive 96/23/EC — Lack of urgency — Balance of interests)

40

2007/C 315/77

Case T-385/07: Action brought on 4 October 2007 — FIFA v Commission

41

2007/C 315/78

Case T-391/07: Action brought on 15 October 2007 — Alber v OHIM (part of hand grip)

41

2007/C 315/79

Case T-394/07: Action brought on 25 October 2007 — Algodonera del Sur v Council and Commission

42

2007/C 315/80

Case T-396/07: Action brought on 30 October 2007 — France Télécom v OHIM (UNIQUE)

42

2007/C 315/81

Case T-399/07: Action brought on 31 October 2007 — Basell Polyolefine v Commission

43

2007/C 315/82

Case T-400/07: Action brought on 5 November 2007 — GretagMacbeth v OHIM (Coloured squares)

43

2007/C 315/83

Case T-231/07: Order of the Court of First Instance of 5 November 2007 — ITT Manufacturing Enterprises v OHIM — ITT Trademark & Trade (I.T.T.)

44

2007/C 315/84

Case T-287/07: Order of the Court of First Instance of 15 October 2007 — cApStAn v Commission

44

2007/C 315/85

Case T-314/07 R: Order of the Court of First Instance of 30 October 2007 — Simsalagrimm Filmproduktion v Commission and EACEA

44

2007/C 315/86

Case T-382/07 R: Order of the Court of First Instance of 30 October 2007 — France v Council

44

 

European Union Civil Service Tribunal

2007/C 315/87

Case F-125/06: Judgment of the Civil Service Tribunal (Second Chamber) of 8 November 2007 — Deffaa v Commission (Staff case — Officials — Reform of the Staff Regulations — Transfer — Post of Director-General — Grading — Article 7(1) of the Staff Regulations — Article 29(1) of the Staff Regulations — Second paragraph of Article 44 of the Staff Regulations — Article 45(1) of the Staff Regulations — Management premium)

45

2007/C 315/88

Case F-103/07: Action brought on 5 October 2007 — Duta v Court of Justice

45

2007/C 315/89

Case F-107/07: Action brought on 8 October 2007 — Daskalakis v Commission

46

2007/C 315/90

Case F-112/07: Action brought on 16 October 2007 — Doumas v Commission

46

2007/C 315/91

Case F-114/07: Action brought on 19 October 2007 — Wenning v Europol

47

2007/C 315/92

Case F-115/07: Action brought on 22 October 2007 — Balieu-Steinmetz and Noworyta v Parliament

48

2007/C 315/93

Case F-117/07: Action brought on 25 October 2007 — Kolountzios v Commission

48

2007/C 315/94

Case F-118/07: Action brought on 22 October 2007 — Strack v Commission

49

2007/C 315/95

Case F-120/07: Action brought on 22 October 2007 — Strack v Commission

50

2007/C 315/96

Case F-121/07: Action brought on 22 October 2007 — Strack v Commission

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EN

 

IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Court of Justice

22.12.2007   

EN

Official Journal of the European Union

C 315/1

(2007/C 315/01)

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

OJ C 297, 8.12.2007

Past publications

OJ C 283, 24.11.2007

OJ C 269, 10.11.2007

OJ C 247, 20.10.2007

OJ C 235, 6.10.2007

OJ C 223, 22.9.2007

OJ C 211, 8.9.2007

These texts are available on:

 

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

V Announcements

COURT PROCEEDINGS

Court of Justice

22.12.2007   

EN

Official Journal of the European Union

C 315/2

Judgment of the Court (Grand Chamber) of 13 November 2007 — Commission of the European Communities v Ireland

(Case C-507/03) (1)

(Public procurement - Articles 43 EC and 49 EC - Directive 92/50/EEC - Award of a public contract to the Irish postal service An Post without a prior contract notice - Certain cross-border interest - Transparency)

(2007/C 315/02)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: X. Lewis and K. Wiedner, Agents, J. Flynn QC, acting as Agents)

Defendant: Ireland, represented by D. O'Hagan, Agent, E. Regan and B. O'Moore SC and C. O'Toole, Barrister

Interveners in support of the defendant: Kingdom of Denmark (represented by J. Molde and A. Jacobsen, Agents), French Republic (represented by G. de Bergues, D. Petrausch and S. Ramet, Agents), Kingdom of the Netherlands (represented by H.G. Sevenster, C. Wissels and P. van Ginneken, Agents), Republic of Finland (represented by A. Guimaraes-Purokoski, Agent)

Re:

Failure of a Member State to fulfil its obligations — Infringement of Articles 43 and 49 EC — Procedure for award of public contracts — Decision to award a public contract without publication of a prior contract notice — Contract awarded to the Irish postal service (An Post) under which recipients of social welfare benefits could collect their payments from post offices

Operative part of the judgment

The Court:

1.

Dismisses the action;

2.

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

3.

Orders the Kingdom of Denmark, the French Republic, the Kingdom of the Netherlands and the Republic of Finland to bear their own costs.

(1)  OJ C 35, 7.2.2004.

22.12.2007   

EN

Official Journal of the European Union

C 315/2

Judgment of the Court (Grand Chamber) of 23 October 2007 — Republic of Poland v Council of the European Union

(Case C-273/04) (1)

(Action for annulment - Council Decision 2004/281/EC - Common agricultural policy - Act concerning the conditions of accession to the European Union - Adaptation - Infringement of principle of non-discrimination)

(2007/C 315/03)

Language of the case: Polish

Parties

Applicant: Republic of Poland (represented by: T. Nowakowski, E. Ośniecka-Tamecka, M. Szpunar, B. Majczyna, K. Rokicka and I. Niemirka, Agents)

Interveners in support of the applicant: Republic of Latvia (represented by A. Zikmane and E. Balode-Buraka, Agents), Republic of Lithuania (represented by D. Kriaučiūnas, Agent), Republic of Hungary (represented by P. Gottfried and R. Somssich, Agents)

Defendant: Council of the European Union (represented by: F. Ruggeri Laderchi, K. Zieleśkiewicz and F. Florindo Gijón, Agents)

Intervener in support of the defendant: Commission of the European Communities (represented by T. van Rijn, A. Stobiecka-Kuik and L. Visaggio, Agents)

Re:

Annulment of Article 1(5) of Council Decision 2004/281/EC of 22 March 2004 adapting the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, following the reform of the common agricultural policy (OJ 2004 L 93, p. 1) — Infringement of the principles of non-discrimination, equal treatment and good faith

Operative part of the judgment

1)

Dismisses the action;

2)

Orders the Republic of Poland to pay the costs;

3)

Orders the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, and the Commission of the European Communities to bear their own costs.

(1)  OJ C 239, 25.9.2004.

22.12.2007   

EN

Official Journal of the European Union

C 315/3

Judgment of the Court (Second Chamber) of 25 October 2007 — Commission of the European Communities v Hellenic Republic

(Case C-334/04) (1)

(Failure of a Member State to fulfil obligations - Directive 79/409/EEC - Annex I - Conservation of wild birds - Special protection areas - IBA 2000 - Value - Quality of the data - Criteria - Margin of discretion - Manifestly insufficient classification - Wetlands)

(2007/C 315/04)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: M. Patakia and M. van Beek, Agents)

Defendant: Hellenic Republic (represented by: E. Skandalou, Agent)

Interveners in support of the defendant: Kingdom of Spain (represented by: N. Díaz Abad, Agent), French Republic (represented by: G. de Bergues and C. Jurgensen-Mercier, Agents), Portuguese Republic (represented by: L. Fernandes and M. Lois, Agents), Republic of Finland (represented by: T. Pynnä, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to implement, within the prescribed period, Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1) — Failure to comply with Article 4 of the directive concerning the designation of special areas of conservation — Areas established in Greece insufficient in number

Operative part of the judgment

The Court:

1.

Declares that:

—

by classifying as special protection areas territories the number and overall size of which fall clearly short of the number and overall size of the territories fulfilling the preconditions for classification as special protection areas for the purposes of Article 4(1) and (2) of 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,

—

by failing to designate special protection areas to offer protection to Krüper's nuthatch (Sitta krueperi), and

—

by classifying as special protection areas areas in which the shag (Mediterranean subspecies) (Phalacrocorax aristotelis desmarestii), bearded vulture (Gypaetus barbatus), black vulture (Aegypius monachus), lesser spotted eagle (Aquila pomarina), imperial eagle (Aquila heliaca), long-legged buzzard (Buteo rufinus), Bonelli's eagle (Hieraaetus fasciatus), lesser kestrel (Falco naumanni), Eleonora's falcon (Falco eleonorae), Lanner falcon (Falco biarmicus) and cinereous bunting (Emberiza cineracea) are insufficiently represented,

the Hellenic Republic has failed to fulfil its obligations under Article 4(1) and (2) of Directive 79/409, as amended by Directive 97/49;

2.

Dismisses the remainder of the action;

3.

Orders the Hellenic Republic to pay the costs;

4.

Orders the Kingdom of Spain, the French Republic, the Portuguese Republic and the Republic of Finland to bear their own costs.

(1)  OJ C 239, 25.9.2004.

22.12.2007   

EN

Official Journal of the European Union

C 315/4

Judgment of the Court (Third Chamber) of 18 October 2007 — Commission of the European Communities v Kingdom of Denmark

(Case C-19/05) (1)

(Failure of a Member State to fulfil obligations - Communities' own resources - Customs duties legally owed not recovered following an error by the national customs authorities - Financial liability of the Member States)

(2007/C 315/05)

Language of the case: Danish

Parties

Applicant: Commission of the European Communities (represented by: N.B. Rasmussen, G. Wilms and H.-P. Hartvig, Agents)

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

Re:

Failure of a Member State to fulfil obligations — Article 10 EC and Articles 2 and 8 of Council Decision 94/728/EC, Euratom of 31 October 1994 on the system of the European Communities' own resources (OJ 1994 L 293, p. 9) — Financial responsibility of the Member States for own resources — Failure to make available to the Commission an amount of DKK 18 687 475 that the customs authorities wrongly omitted to recover as customs duties from an undertaking.

Operative part of the judgment

The Court:

1.

Declares that, by failing to make available to the Commission of the European Communities an amount of DKK 18 687 475 in own resources, together with default interest thereon calculated as from 27 July 2000, the Kingdom of Denmark has failed to fulfil its obligations under Community law and, in particular, under Articles 2 and 8 of Council Decision 94/728/EC, Euratom of 31 October 1994 on the system of the European Communities' own resources;

2.

Orders the Kingdom of Denmark to pay the costs.

(1)  OJ C 93, 16.4.2005.

22.12.2007   

EN

Official Journal of the European Union

C 315/4

Judgment of the Court (Third Chamber) of 8 November 2007 (reference for a preliminary ruling from the Tribunale di Forlì — Italy) — Criminal proceedings against Karl Josef Wilhelm Schwibbert

(Case C-20/05) (1)

(Directive 98/34/EC - Procedure for the provision of information in the field of technical standards and regulations - Obligation to communicate draft technical regulations - National law requiring the distinctive sign of the national body responsible for collecting copyright royalties to be affixed to compact discs placed on the market - Definition of ‘technical regulation’)

(2007/C 315/06)

Language of the case: Italian

Referring court

Tribunale di Forlì

Party in the main criminal proceedings

Karl Josef Wilhelm Schwibbert

Re:

Reference for a preliminary ruling — Tribunale di Forlì — Interpretation of Article 3 EC and Articles 23 EC to 27 EC and of Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 1992 L 346, p. 61) — Compatibility of a national law imposing the obligation to affix to all recordings of cinematographic or audiovisual work put on sale the sign of the national body responsible for collecting royalties

Operative part of the judgment

Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998, must be interpreted as meaning that national provisions such as those at issue in the main proceedings — in so far as such provisions introduced, after the implementation of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations, the obligation to affix the distinctive sign ‘SIAE’ to compact discs of works of figurative art for the purposes of marketing them in the Member State concerned — constitute a technical regulation which, if not notified to the Commission, cannot be invoked against an individual.

(1)  OJ C 93, 16.4.2007.

22.12.2007   

EN

Official Journal of the European Union

C 315/5

Judgment of the Court (First Chamber) of 18 October 2007 — Nordspedizionieri di Danielis Livio & C. Snc, in liquidation, Domenico D'Alessandro v Commission of the European Communities

(Case C-62/05 P) (1)

(Appeal - Regulation (EEC) No 1430/79 - Remission of import duties - Consignment of cigarettes destined for Spain - Fraud committed in a Community transit operation)

(2007/C 315/07)

Language of the case: Italian

Parties

Appellants: Nordspedizionieri di Danielis Livio & C. Snc, in liquidation, Livio Danielis and Domenico D'Alessandro (represented by: G. Leone, lawyer)

Other party to the proceedings: Commission of the European Communities (represented by: X. Lewis, Agent, and G. Bambara, lawyer)

Re:

Appeal against the judgment of the Court of First Instance (Fifth Chamber) of 14 December 2004, in Case T-332/02 Nordspedizionieri di Danielis Livio and Others v Commission dismissing an action for the annulment of the Commission decision (REM 14/01) of 28 June 2002 informing the Italian authorities that there is no ground for the remission of import duties on a cargo of cigarettes destined for Spain on the ground that a fraud committed by third parties in the course of a Community transit operation does not constitute a special situation justifying the remission of import duties

Operative part of the judgment

The Court:

1)

Dismisses the appeal;

2)

Orders Nordspedizionieri di Danielis Livio & C. Snc, in liquidation, and Mr Danielis and Mr D'Alessandro to pay the costs.

(1)  OJ C 82, 2.4.2005.

22.12.2007   

EN

Official Journal of the European Union

C 315/5

Judgment of the Court (Grand Chamber) of 23 October 2007 — Commission of the European Communities v Federal Republic of Germany

(Case C-112/05) (1)

(Failure of a Member State to fulfil obligations - Article 56 EC - Legislative provisions concerning the public limited company Volkswagen)

(2007/C 315/08)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: F. Benyon and G. Braun, Agents)

Defendant: Federal Republic of Germany (represented by: M. Lumma and A. Dittrich, Agents, assisted by H. Wissel, Lawyer)

Re:

Failure of a Member State to fulfil obligations — Articles 43 EC and 56 EC — Conditions for the privatisation of Volkswagenwerk GmbH — Allocation of special rights to certain shareholders — Mandatory State representation on the supervisory board of the company, irrespective of the numbers of shares held

Operative part of the judgment

The Court:

1)

Declares that, by maintaining in force Paragraph 4(1), as well as Paragraph 2(1) in conjunction with Paragraph 4(3), of the Law of 21 July 1960 on the privatisation of equity in the Volkswagenwerk limited company (Gesetz über die Überführung der Anteilsrechte an der Volkswagenwerk Gesellschaft mit beschränkter Haftung in private Hand), in the version applicable to the present dispute, the Federal Republic of Germany has failed to fulfil its obligations under Article 56(1) EC;

2)

Dismisses the remainder of the action;

3)

Orders the Federal Republic of Germany to pay the costs.

(1)  OJ C 143, 11.6.2005.

22.12.2007   

EN

Official Journal of the European Union

C 315/6

Judgment of the Court (Third Chamber) of 8 November 2007 — Kingdom of Spain v Council of the European Union

(Case C-141/05) (1)

(Fisheries - Regulation (EC) No 27/2005 - Allocation of catch quotas among Member States - Act of Accession of the Kingdom of Spain - End of the transitional period - Requirement of relative stability - Principle of non-discrimination - New fishing opportunities - Admissibility)

(2007/C 315/09)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: E. Braquehais Conesa and M.A. Sampol Pucurull, Agents)

Defendant: Council of the European Union (represented by: F. Florindo Gijón and A. De Gregorio Merino, Agents)

Intervener in support of the defendant: Commission of the European Communities (represented by: F. Jimeno Fernández and T. van Rijn, Agents)

Re:

Partial annulment of Council Regulation (EC) No 27/2005 of 22 December 2004 fixing for 2005 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required (OJ 2005 L 12, p. 1), in so far as the new fishing opportunities in the North Sea and Baltic Sea were not allocated having regard to Spain's interests, in spite of the transitional arrangements — Discrimination — Application of Article 20(2) of Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the common fisheries policy (OJ 2002 L 358, p. 59)

Operative part of the judgment

The Court:

1.

Dismisses the action;

2.

Orders the Kingdom of Spain to pay the costs;

3.

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

(1)  OJ C 115, 14.5.2005.

22.12.2007   

EN

Official Journal of the European Union

C 315/6

Judgment of the Court (Second Chamber) of 25 October 2007 — Commission of the European Communities v Ireland

(Case C-248/05) (1)

(Failure of a Member State to fulfil its obligations - Protection of underground water against pollution caused by hazardous substances - Directive 80/68/EEC)

(2007/C 315/10)

Language of the case: English

Parties

Applicant: Commission of the European Communities (represented by: S. Pardo Quintillán and D. Recchia, Agents)

Defendant: Ireland (represented by: D. O'Hagan, Agent)

Re:

Failure of a Member State to fulfil its obligations — Breach of Articles 4, 5, 7, 8, 9, 10, 12 and 13 of Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances (OJ 1980 L 20, p. 43) — Operation of a landfill without formal authorisation at Ballymurtagh, County Wicklow — Pollution of groundwater in County Wexford and Killarney, County Kerry, by indirect discharges of phosphorus from septic tanks

Operative part of the judgment

The Court:

1)

Declares that, by having failed to adopt all the measures necessary to comply with Articles 4, 5, 7 and 10 of Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances, as amended by Council Directive 91/692/EEC of 23 December 1991 standardising and rationalising reports on the implementation of certain directives relating to the environment, with regard to the municipal landfill at Ballymurtagh (County Wicklow), Ireland has failed to fulfil its obligations under Directive 80/68, as amended by Directive 91/692;

2)

Dismisses the remainder of the action;

3)

Orders Ireland to pay two thirds of all the costs. The Commission of the European Communities is ordered to pay the other third.

(1)  OJ C 205, 20.8.2005.

22.12.2007   

EN

Official Journal of the European Union

C 315/7

Judgment of the Court (Second Chamber) of 8 November 2007 (reference for a preliminary ruling from the Bundesgerichtshof (Germany)) — Gintec International Import-Export GmbH v Verband Sozialer Wettbewerb eV

(Case C-374/05) (1)

(Directives 2001/83/EC and 92/28/EEC - National legislation prohibiting advertising of medicinal products by way of statements of third parties or prize draws - Use of generally positive results of a consumer survey and a monthly prize draw to win a pack of the product)

(2007/C 315/11)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: Gintec International Import-Export GmbH

Defendant: Verband Sozialer Wettbewerb eV

Re:

Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of Articles 87(3) and 90(j) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67), as amended by Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004 amending Directive 2001/83/EC on the Community code relating to medicinal products for human use (OJ 2004 L 136, p. 34), and Articles 2(3) and 5(j) of Council Directive 92/28/EEC of 31 March 1992 on the advertising of medicinal products for human use (OJ 1992 L 113, p. 13) — National legislation prohibiting advertising for medicinal products by way of statements of third parties having no specialist knowledge or by lotteries — Use of generally positive results of a customer survey and a monthly prize draw to win a pack of the product

Operative part of the judgment

1.

Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, as amended by Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004, brought about complete harmonisation in the field of advertising of medicinal products and lists expressly the cases in which Member States are authorised to adopt provisions departing from the rules laid down by that directive. The directive must therefore be interpreted to the effect that a Member State may not provide, in its national legislation, for an absolute and unconditional prohibition, in the advertising of medicinal products to the general public, on the use of statements from third parties, whilst their use can be limited, under that same directive, only by reason of their specific content or the type of person making the statement.

2.

(a)

Directive 2001/83, as amended by Directive 2004/27, requires Member States to provide, in their national legislation, for a prohibition on the use, in the advertising of medicinal products to the general public, of statements from third parties where those refer, in improper, alarming or misleading terms, to claims of recovery within the meaning of Article 90(j) of Directive 2001/83, as amended by Directive 2004/27, the term ‘claims of recovery’ having thus to be interpreted as not including references to the reinforcement of a person's well-being where the therapeutic efficacy of the medicinal product in terms of the elimination of a particular illness is not referred to. Article 90(c) of Directive 2001/83, as amended by Directive 2004/27, also requires Member States to provide, in their national legislation, for a prohibition on the use, in the advertising of medicinal products to the general public, of statements from third parties where they give the impression that the use of the medicinal product contributes to the reinforcement of general well-being.

(b)

Articles 87(3), 88(6) and 96(1) of Directive 2001/83, as amended by Directive 2004/27, prohibit the advertising of a medicinal product by means of a prize draw announced on the internet, inasmuch as it encourages the irrational use of that medicinal product and leads to its direct distribution to the general public and to the presentation of free samples.

3.

The first and second questions submitted for a preliminary ruling would be answered in the same way if the provisions of Council Directive 92/28/EEC of 31 March 1992 on the advertising of medicinal products for human use applied.

(1)  OJ C 315, 10.12.2005.

22.12.2007   

EN

Official Journal of the European Union

C 315/8

Judgment of the Court (First Chamber) of 8 November 2007 (reference for a preliminary ruling from the Gerechtshof te Amsterdam — Netherlands) — Amurta S.G.P.S v Inspecteur van de Belastingdienst

(Case C-379/05) (1)

(Articles 56 EC to 58 EC - Free movement of capital - National tax legislation providing for exemption of shareholdings from corporation tax - Taxation of dividends - Withholding tax - Exemption from withholding tax - Application to companies receiving dividends with a seat or permanent establishment in the Member State granting the exemption and whose shareholdings benefit from exemption from corporation tax - Refusal to apply the exemption from withholding tax to dividends distributed to a recipient company not having a seat or a permanent establishment in that Member State)

(2007/C 315/12)

Language of the case: Dutch

Referring court

Gerechtshof te Amsterdam — Pays-Bas

Parties to the main proceedings

Applicant: Amurta S.G.P.S.

Defendant: Inspecteur van de Belastingdienst

Re:

Preliminary ruling — Gerechtshof te Amsterdam — Interpretation of Articles 56 EC, 57 EC and 58 EC — Corporation tax — Exemption from tax in the case of dividends paid by a company established in the national territory to a company also established in that territory — Refusal to grant that exemption in the case of dividends paid by a company established in the national territory to a company established in the territory of another Member State — Relevance of the existence, in that other Member State, of an equivalent exemption from taxation of dividends in favour of the company established in that State

Operative part of the judgment

1.

Articles 56 EC and 58 EC preclude legislation of a Member State which, where the minimum threshold for the parent company's shareholdings in the share capital of the subsidiary set out in Article 5(1) of Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States is not reached, provides for a withholding tax on dividends distributed by a company established in that Member State to a company established in another Member State, while exempting from that tax the dividends paid to a company liable to corporation tax in the first Member State or which has a permanent establishment in that Member State which owns the shares in the company making the distribution.

2.

A Member State may not rely on the existence of a full tax credit granted unilaterally by another Member State to a recipient company established in the latter Member State in order to escape the obligation to prevent economic double taxation of dividends resulting from the exercise of its power to tax in a situation where the first Member State prevents economic double taxation of dividends distributed to companies established in its territory. Where a Member State relies on a convention for the avoidance of double taxation concluded with another Member State, it is for the national court to establish whether account should be taken, in the main proceedings, of that convention, and, if so, to determine whether it enables the effects of the restriction on the free movement of capital to be neutralised.

(1)  OJ C 22, 28.1.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/8

Judgment of the Court (Grand Chamber) of 23 October 2007 — European Parliament v Commission of the European Communities

(Case C-403/05) (1)

(Action for annulment - Commission decision approving a project relating to border security in the Philippines - Decision adopted on the basis of Regulation (EEC) No 443/92 - Commission's implementing powers - Limits)

(2007/C 315/13)

Language of the case: French

Parties

Applicant: European Parliament (represented by: R. Passos, E. Waldherr, K. Lindahl and G. Mazzini, Agents)

Defendant: Commission of the European Communities (represented by: C. Tufvesson and A. Bordes, Agents)

Intervener in support of the defendant: Kingdom of Spain (represented by J.M. Rodríguez Cárcamo, acting as Agent)

Re:

Annulment of the Commission decision approving a project relating to border security in the Philippines (ASIA/2004/016-924; budgetary line 19 10 02) adopted in implementation of Council Regulation (EEC) No 443/92 of 25 February 1992 on financial and technical assistance to, and economic cooperation with, the developing countries in Asia and Latin America (OJ 1992 L 52, p. 1)

Operative part of the judgment

The Court :

1.

Annuls the decision of the Commission of the European Communities approving a project relating to border security in the Republic of the Philippines to be financed by budget line 19 10 02 in the general budget of the European Communities (Philippines Border Management Project, No ASIA/2004/016-924);

2.

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

3.

Orders the Kingdom of Spain to bear its own costs.

(1)  OJ C 10, 14.1.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/9

Judgment of the Court (Fourth Chamber) of 25 October 2007 (reference for a preliminary ruling from the Commissione tributaria regionale di Genova (Italy)) — Agenzia delle Entrate — Ufficio di Genova 1 v Porto Antico di Genova SpA

(Case C-427/05) (1)

(Structural Funds - Regulation (EEC) No 4253/88 - Second subparagraph of Article 21(3) - Prohibition of deduction - Calculation of taxable income - Taking account of Community grants received)

(2007/C 315/14)

Language of the case: Italian

Referring court

Commissione tributaria regionale di Genova

Parties to the main proceedings

Applicant: Agenzia delle Entrate — Ufficio di Genova 1

Defendant: Porto Antico di Genova SpA

Re:

Request for a preliminary ruling — Commissione tributaria regionale di Genova — Interpretation of Article 21(3) of Council Regulation No 2082/93 of 20 July 1993 amending Regulation (EEC) No 4253/88 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments (OJ 1993 L 193, p. 20) — Compatibility of a national provision which takes into account Community funds received in the assessment of taxable income

Operative part of the judgment

The second subparagraph of Article 21(3) of Council Regulation (EEC) No 4253/88 of 19 December 1988 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments, as amended by Council Regulation (EEC) No 2082/93 of 20 July 1993, must be interpreted as meaning that it does not preclude a national tax provision such as Article 55(3)(b) of Decree No 917 of the President of the Republic of 22 December 1986, which includes grants paid by the Community Structural Funds in the assessment of taxable income.

(1)  OJ C 36, 11.2.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/9

Judgment of the Court (Grand Chamber) of 23 October 2007 — Commission of the European Communities v European Parliament

(Case C-440/05) (1)

(Action for annulment - Articles 31(1)(e) EU, 34 EU and 47 EU - Framework Decision 2005/667/JHA - Enforcement of the law against ship-source pollution - Criminal penalties - Community competence - Legal basis - Article 80(2) EC)

(2007/C 315/15)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: W. Bogensberger and R. Troosters, Agents)

Intervener in support of the applicant: European Parliament (represented by: M. Gómez-Leal, J. Rodrigues and A. Auersperger Matić, Agents)

Defendant: Council of the European Union (represented by: J.-C. Piris and J. Schutte, and by K. Michoel, Agents)

Interveners in support of the defendant: Kingdom of Belgium (represented by M. Wimmer, Agent), Czech Republic (represented by T. Boček, Agent), Kingdom of Denmark (represented by J. Molde, Agent), Republic of Estonia (represented by L. Uibo, Agent), Hellenic Republic (represented by S. Chala and A. Samoni-Rantou, Agents), French Republic (represented by E. Belliard, G. de Bergues and S. Gasri, Agents), Ireland (represented by D. O'Hagan, E. Fitzsimons and N. Hyland, Agents), Republic of Latvia (represented by E. Balode-Buraka and E. Broks, Agents), Republic of Lithuania (represented by D. Kriaučiūnas, Agent), Republic of Hungary (represented by P. Gottfried, Agent), Republic of Malta (represented by S. Camilleri, Agent, and P. Grech, Deputy Attorney General), Kingdom of the Netherlands (represented by H.G. Sevenster and M. de Grave, Agents), Republic of Austria (represented by C. Pesendorfer, Agent), Republic of Poland (represented by E Ośniecka-Tamecka, Agent), Portuguese Republic (represented by L. Fernandes and M.L. Duarte, Agents), Slovak Republic (represented by R. Procházka, Agent), Republic of Finland (represented by E. Bygglin, Agent), Kingdom of Sweden (represented by K. Wistrand, Agent), United Kingdom of Great Britain and Northern Ireland (represented by E. O'Neill, D.J. Rhee and D. Anderson, Agents),

Re:

Annulment of Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship source pollution (OJ 2005 L 255, p. 164)

Operative part of the judgment

The Court:

1)

Annuls Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution;

2)

Orders the Council of the European Union to pay the costs;

3)

Orders the Kingdom of Belgium, the Czech Republic, the Kingdom of Denmark, the Republic of Estonia, the Hellenic Republic, the French Republic, Ireland, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden, and the United Kingdom of Great Britain and Northern Ireland and also the European Parliament to bear their own costs.

(1)  OJ 2006 C 22.

22.12.2007   

EN

Official Journal of the European Union

C 315/10

Judgment of the Court (Fourth Chamber) of 4 October 2007 (reference for a preliminary ruling from the Landgericht Wiesbaden — Germany) — Schutzverband der Spirituosen-Industrie eV v Diageo Deutschland GmbH

(Case C-457/05) (1)

(Free movement of goods - Directive 75/106/EEC - Approximation of the laws of the Member States - Liquids in prepackages - Making up by volume - Article 5(3)(b) and (d) - Baileys Minis - Marketing in prepackages with a nominal volume of 0,071 litre)

(2007/C 315/16)

Language of the case: German

Referring court

Landgericht Wiesbaden

Parties to the main proceedings

Applicant: Schutzverband der Spirituosen-Industrie eV

Defendant: Diageo Deutschland GmbH

Re:

Preliminary ruling — Landgericht Wiesbaden — Interpretation of Articles 28 EC and 30 EC — Validity of the second sentence of the second paragraph of Article 5(3)(b), in conjunction with Article 5(3)(d) and Annex III, section 4, of Council Directive 75/106/EEC of 19 December 1974 on the approximation of the laws of the Member States relating to the making-up by volume of certain prepackaged liquids (OJ 1975 L 42, p. 1), as amended — Prohibition on the marketing in other Member States of alcoholic drinks in packaging with a volume of 0,071 litre which are lawfully manufactured and marketed in Ireland or the United Kingdom — Baileys Minis

Operative part of the judgment

On a proper construction of Article 5(3)(b) of Council Directive 75/106/EEC of 19 December 1974 on the approximation of the laws of the Member States relating to the making-up by volume of certain prepackaged liquids, as amended by the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, prepackages with a nominal volume of 0,071 litre which contain one of the products listed in section 4 of Annex III to that directive and which are lawfully manufactured and marketed in Ireland or the United Kingdom may also be marketed in the other EC Member States.

The final sentence of the second subparagraph of Article 5(3)(b) of Directive 75/106, as amended by that act, read in conjunction with Article 5(3)(d) thereof is invalid in so far as it excludes the nominal volume of 0,071 litre from the harmonised Community range of nominal volumes appearing in column I of section 4 of Annex III to that directive.

(1)  OJ C 131, 3.6.2007.

22.12.2007   

EN

Official Journal of the European Union

C 315/11

Judgment of the Court (Fourth Chamber) of 25 October 2007 (reference for a preliminary ruling from the Rechtbank van eerste aanleg te Hasselt — Belgium) — Maria Geurts, Dennis Vogten v Administratie van de BTW, registratie en domeinen, Belgische Staat

(Case C-464/05) (1)

(Articles 43 EC and 56 EC - National tax legislation - Inheritance tax - Family company - Exemption - Conditions - Employment of a certain number of workers in a region of a Member State)

(2007/C 315/17)

Language of the case: Dutch

Referring court

Rechtbank van eerste aanleg te Hasselt

Parties to the main proceedings

Applicants: Maria Geurts, Dennis Vogten

Defendant: Administratie van de BTW, registratie en domeinen, Belgische Staat

Re:

Preliminary ruling — Burgerlijke Rechtbank van eerste aanleg te Hasselt — Interpretation of Articles 43 EC and 56 EC — Inheritance arising in a region of a Member State involving shares in a family company in another Member State and claims against that company — Provision for exemption from inheritance tax if that company has employed at least five full-time workers in that region during the three years prior to the death of the deceased — Whether compatible with Articles 43 EC and 56 EC

Operative part of the judgment

In the absence of valid justification, Article 43 EC precludes inheritance tax legislation of a Member State which excludes from the exemption from that tax available for family undertakings those undertakings which employ in the three years preceding the date of death of the deceased at least five workers in another Member State, whereas it grants such an exemption where the workers are employed in a region of the first Member State.

(1)  OJ C 74, 25.3.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/11

Judgment of the Court (Grand Chamber) of 23 October 2007 (references for a preliminary ruling from the Verwaltungsgericht Aachen (Germany)) — Rhiannon Morgan (C-11/06) v Bezirksregierung Köln, Iris Bucher (C-12/06) v Landrat des Kreises Düren

(Joined Cases C-11/06 and C-12/06) (1)

(Citizenship of the Union - Articles 17 EC and 18 EC - Refusal to award an education or training grant to nationals of Member States pursuing their studies in another Member State - Requirement of continuation between studies pursued in another Member State and those pursued previously for at least one year in an establishment in the student's Member State of origin)

(2007/C 315/18)

Language of the case: German

Referring court

Verwaltungsgericht Aachen

Parties to the main proceedings

Applicants: Rhiannon Morgan (C-11/06), Iris Bucher (C-12/06)

Defendants: Bezirksregierung Köln (C-11/06), Landrat des Kreises Düren (C 12/06)

Re:

Preliminary ruling — Verwaltungsgericht Aachen — Interpretation of Articles 17 EC and 18 EC — Refusal to award an education or training grant (‘Ausbildungsförderung’) to a national who is residing and pursuing studies in another Member State on the ground that that national has not completed at least the first year of those studies in an established situated within the national territory

Operative part of the judgment

Articles 17 EC and 18 EC preclude, in circumstances such as those in the cases before the referring court, a condition in accordance with which, in order to obtain an education or training grant for studies in a Member State other than that of which the students applying for such assistance are nationals, those studies must be a continuation of education or training pursued for at least one year in the Member State of origin of those students.

(1)  OJ C 121, 20.5.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/12

Judgment of the Court (Fourth Chamber) of 18 October 2007 (reference for a preliminary ruling from the Tribunal Superior de Justicia de Madrid — Spain) — Navicon SA v Administración del Estado

(Case C-97/06) (1)

(Sixth VAT Directive - Exemptions - Article 15(5) - The concept of ‘chartering sea-going vessels’ - Compatibility of a national law allowing the exemption for full chartering only)

(2007/C 315/19)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Madrid

Parties to the main proceedings

Appellant: Navicon SA

Respondent: Administración del Estado

Re:

Reference for a preliminary ruling — Tribunal Superior de Justicia de Madrid — Interpretation of Article 15(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) — Exemption for the chartering of sea-going vessels — Inclusion or non-inclusion of partial chartering — Compatibility with the directive of a national law allowing exemption only for full chartering

Operative part of the judgment

1.

Article 15(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, as amended by Council Directive 92/111/EEC of 14 December 1992, must be interpreted as covering both full chartering and partial chartering of vessels used for navigation on the high seas. Consequently, that provision precludes national legislation, such as that at issue in the main proceedings, which grants the benefit of the exemption from value added tax only in the case of full chartering of such vessels.

2.

It is for the referring court to determine whether the contract in issue in the main proceedings satisfies the conditions of a chartering contract within the meaning of Article 15(5) of Sixth Directive 77/388, as amended by Directive 92/111.

(1)  OJ C 131, 3.6.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/12

Judgment of the Court (Second Chamber) of 8 November 2007 (reference for a preliminary ruling from the Landgericht Hamburg (Germany)) — Ludwigs-Apotheke München Internationale Apotheke v Juers Pharma Import-Export GmbH

(Case C-143/06) (1)

(Free movement of goods - Articles 28 EC and 30 EC - Articles 11 and 13 of the EEA Agreement - Imported medicinal products not authorised in the importing State - Prohibition of advertising - Directive 2001/83/EC)

(2007/C 315/20)

Language of the case: German

Referring court

Landgericht Hamburg

Parties to the main proceedings

Applicant: Ludwigs-Apotheke München Internationale Apotheke

Defendant: Juers Pharma Import-Export GmbH

Re:

Reference for a preliminary ruling — Landgericht Hamburg — Interpretation of the third indent of Article 86(2) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67), as amended by Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004 amending Directive 2001/83/EC on the Community code relating to medicinal products for human use (OJ 2004 L 136, p. 34) — Scope of application — National rules prohibiting an importer from sending pharmacies price lists of medicinal products which, although not authorised on the national market, may even so be imported

Operative part of the judgment

A prohibition on advertising such as that laid down by Paragraph 8 of the Law on the advertising of medicines (Heilmittelwerbegesetz) must be assessed in the light not of the provisions on advertising of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, as amended by Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004, but of Articles 28 EC and 30 EC and Articles 11 and 13 of the Agreement on the European Economic Area of 2 May 1992. Article 28 EC and Article 11 of the Agreement on the European Economic Area preclude such a prohibition, in so far as it applies to the distribution to pharmacists of lists of non-approved medicinal products, the importation of which from another Member State or a non-Member State which is a party to the Agreement on the European Economic Area is authorised only on an exceptional basis, which contain no information other than that concerning the trade name, packaging size, dose and price of those medicinal products.

(1)  OJ C 121, 20.5.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/13

Judgment of the Court (Fourth Chamber) of 25 October 2007 — Ermioni Komninou, Grigorios Ntokos, Donatos Pappas, Vassileios Pappas, Aristeidis Pappas, Eleftheria Pappa, Lamprini Pappa, Eirini Pappa, Alexandra Ntokou, Fotios Dimitriou, Zoï Dimitriou, Petros Bolossis, Despoina Bolossi and Konstantinos Bolossis, Thomas Bolossis v Commission of the European Communities

(Case C-167/06 P) (1)

(Appeal - Non-contractual liability of the Community - Complaint under Article 226 EC - Treatment of complainants by the Commission - Principles of sound administration, legitimate expectations and legal certainty - Scope - Article 21 EC - Right of complaint - Scope of the Ombudsman's findings)

(2007/C 315/21)

Language of the case: Greek

Parties

Appellants: Ermioni Komninou, Grigorios Ntokos, Donatos Pappas, Vassileios Pappas, Aristeidis Pappas, Eleftheria Pappa, Lamprini Pappa, Eirini Pappa, Alexandra Ntokou, Fotios Dimitriou, Zoï Dimitriou, Petros Bolossis, Despoina Bolossi and Konstantinos Bolossis, Thomas Bolossis (represented by: G. Dellis and G. Adonakopoulos, dikigoroi)

Other party to the proceedings: Commission of the European Communities (represented by: Konstantinidis, Agent)

Re:

Appeal brought against the order of the Court of First Instance (Fifth Chamber) of 13 January 2006, Komninou and Others v Commission (T-42/04), in which the Court dismissed as unfounded an application for compensation for the non-material damage allegedly suffered by the applicants following the Commission's treatment of their complaint concerning Community financing of a biological sewage treatment plant in Preveza in Greece

Operative part of the judgment

The Court:

1.

Sets aside the order of the Court of First Instance of the European Communities of 13 January 2006, Komninou and Others v Commission (T-42/04), in so far as the Court failed to rule on the plea alleging breach of Article 21(2) and (3) EC;

2.

Dismisses the remainder of the action;

3.

Dismisses the application before the Court of First Instance of the European Communities, in so far as it is based on a breach of Article 21(2) and (3) EC;

4.

Orders Ermioni Komninou, Grigorios Ntokos, Donatos Pappas, Vassileios Pappas, Aristeidis Pappas, Eleftheria Pappa, Lamprini Pappa, Eirini Pappa, Alexandra Ntokou, Fotios Dimitriou, Zoï Dimitriou, Petros Bolossis, Despoina Bolossi and Konstantinos Bolossis, Thomas Bolossis to pay the costs at first instance. The costs of the proceedings at first instance leading to the order of the Court of First of the European Communities of 13 January 2006, Komninou and Others v Commission (T-42/04), shall be borne in the manner set out in paragraph 2 of the operative part of that order.

(1)  OJ C 131, 3.6.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/14

Judgment of the Court (Third Chamber) of 18 October 2007 (reference for a preliminary ruling from the Commissione tributaria regionale di Genova (Italy)) — Agrover Srl v Agenzia Dogane Circoscrizione Doganale di Genova

(Case C-173/06) (1)

(Community Customs Code - Inward processing - Association agreement - Prior exportation of rice to a non-member country bound by a preferential customs agreement - Article 216 of the Customs Code - Subsequent recovery of import duties - Article 220(2)(b) of the Customs Code)

(2007/C 315/22)

Language of the case: Italian

Referring court

Commissione tributaria regionale di Genova

Parties to the main proceedings

Applicant: Agrover Srl

Defendant: Agenzia Dogane Circoscrizione Doganale di Genova

Re:

Preliminary ruling — Commissione tributaria regionale di Genova — Interpretation of Articles 216 and 220 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) — Rice exported under the inward processing procedure to a non-member country with which an agreement on preferential tariff treatment is in force — Application of customs duties at the time of importation of the compensating product from a non-member country with which no agreement on preferential tariff treatment is in force

Operative part of the judgment

1)

Article 216 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000, applies to the inward processing operations referred to in Article 115(1)(b) of that regulation in which the compensating products have been exported outside the European Community prior to importation of import goods;

2)

Where, at the time of discharge of an inward processing operation (suspension system) with equivalent compensation and prior exportation, the competent authorities have not contested, on the basis of Article 216 of Regulation No 2913/92, as amended by Regulation No 2700/2000, the exemption from import duties of the goods of non-member country origin, they must waive subsequent entry in the accounts of those import duties, pursuant to Article 220(2)(b) of that regulation, if three cumulative conditions are fulfilled. First, it is necessary that those duties were not levied as a result of an error on the part of the competent authorities themselves, secondly, that that error was such that it could not reasonably have been detected by a person liable for payment acting in good faith and, finally, that that person complied with all the provisions laid down by the legislation in force as regards the customs declaration. It is for the national court to assess whether that is the case in the circumstances in the main proceedings, on the basis of all the concrete aspects of the case before it, and in particular the evidence adduced for that purpose by the applicant in the main proceedings.

(1)  OJ C 143, 17.6.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/14

Judgment of the Court (Second Chamber) of 25 October 2007 (reference for a preliminary ruling from the Corte Suprema di Cassazione — Italy) — Ministero delle Finanze v CO.GE.P. Srl

(Case C-174/06) (1)

(Sixth Directive - VAT - Exempted transactions - Leasing or letting of immovable property - Property owned by the State)

(2007/C 315/23)

Language of the case: Italian

Referring court

Corte Suprema di Cassazione

Parties to the main proceedings

Applicant: Ministero delle Finanze

Defendant: CO.GE.P. Srl

Re:

Reference for a preliminary ruling — Corte Suprema di Cassazione — Interpretation of Article 13B(b) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Exemption for the letting of immovable property — Concession in respect of use of property owned by the State

Operative part of the judgment

Article 13B(b) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as meaning that a legal relationship such as that at issue in the main proceedings, under which a person has been granted the right to occupy and use, including exclusively, public property, namely areas of State maritime property, for a specified period and against payment, is covered by the concept of ‘leasing or letting of immovable property’ within the meaning of that Article.

(1)  OJ C 154, 1.7.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/15

Judgment of the Court (Fourth Chamber) of 18 October 2007 (reference for a preliminary ruling from the Bundeskommunikationssenat (Austria)) — Kommunikationsbehörde Austria (KommAustria) v Österreichischer Rundfunk (ORF)

(Case C-195/06) (1)

(Freedom to provide services - Television broadcasting activities - Directives 89/552/EEC and 97/36/EC - Definition of ‘teleshopping’ and ‘television advertising’ - Prize game)

(2007/C 315/24)

Language of the case: German

Referring court

Bundeskommunikationssenat

Parties to the main proceedings

Applicant: Kommunikationsbehörde Austria (KommAustria)

Defendant: Österreichischer Rundfunk (ORF)

Re:

Reference for a preliminary ruling — Bundeskommunikationssenat — Interpretation of Article 1(c) and (f) of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23), as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 (OJ 1997 L 202, p. 60) — Television broadcast offering viewers the opportunity to participate in a prize game by means of dialling a special telephone number — Definition of ‘television advertising’ and ‘teleshopping’

Operative part of the judgment

On a proper construction of Article 1 of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities, as amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997, a broadcast or part of a broadcast during which a television broadcaster offers viewers the opportunity to participate in a prize game by means of immediately dialling a premium rate telephone number, and thus in return for payment,

—

is covered by the definition given by Article 1(f) of teleshopping if that broadcast or part of a broadcast represents a real offer of services having regard to the purpose of the broadcast of which the game forms part, the significance of the game within the broadcast in terms of time and of anticipated economic effects in relation to those expected in respect of that broadcast as a whole and also to the type of questions which the candidates are asked;

—

is covered by the definition given by Article 1(c) of television advertising if, on the basis of the purpose and content of that game and the circumstances in which the prizes to be won are presented, the game consists of an announcement which seeks to encourage viewers to buy the goods and services presented as prizes to be won or seeks to promote the merits of the programmes of the broadcaster in question indirectly in the form of self-promotion.

(1)  OJ C 243, 1.10.2005.

22.12.2007   

EN

Official Journal of the European Union

C 315/16

Judgment of the Court (First Chamber) of 8 November 2007 (reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria)) — Stadtgemeinde Frohnleiten, Gemeindebetriebe Frohnleiten GmbH v Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft

(Case C-221/06) (1)

(Reference for a preliminary ruling - Levy on the long-term depositing of waste at a waste disposal site - Levy payable by the operator of the waste disposal site and calculated according to the weight of the waste being deposited and the state of the waste disposal site - Exemption from the levy in respect of the deposit of waste from contaminated sites in Austria - No exemption for the deposit of waste from contaminated sites located in other Member States - Article 90 EC - Internal taxation - Discrimination)

(2007/C 315/25)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicants: Stadtgemeinde Frohnleiten, Gemeindebetriebe Frohnleiten GmbH

Defendant: Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft,

Intervener: Republik Österreich

Re:

Reference for a preliminary ruling — Verwaltungsgerichtshof (Austria) — Interpretation of Articles 10, 12, 23, 25, 49 and 90 of the EC Treaty — Exemption from tax on the deposit of waste for waste deriving from the rehabilitation of disused hazardous sites (Altlasten) if those sites are entered in public registers — Exclusion of waste deriving from disused hazardous sites located in another Member State

Operative part of the judgment

The first paragraph of Article 90 EC precludes a national tax provision such as Paragraph 3(2).1 of the Law on the rehabilitation of disused hazardous sites (Altlastensanierungsgesetz) of 7 June 1989 which exempts from the levy imposed on the long-term depositing of waste at waste disposal sites in the Member State concerned deposits of waste derived from the rehabilitation or safeguarding of disused hazardous sites or suspected contaminated sites located in that Member State alone, but excludes exemption of deposits of waste derived from the rehabilitation or safeguarding of sites located in other Member States.

(1)  OJ C 178, 29.7.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/16

Judgment of the Court (Eighth Chamber) of 25 October 2007 — Develey Holding GmbH & Co. Beteiligungs KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-238/06 P) (1)

(Appeal - Community trade mark - Three-dimensional mark - Shape of a plastic bottle - Refusal to register - Absolute grounds for refusal - Lack of distinctive character - Earlier national trade mark - Paris Convention - TRIPs Agreement - Article 7(1)(b) of Regulation (EC) No 40/94)

(2007/C 315/26)

Language of the case: German

Parties

Appellant: Develey Holding GmbH & Co. Beteiligungs KG (represented by: R. and H. Kunz-Hallstein, Rechtsanwälte)

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

Re:

Appeal against the judgment of the Court of First Instance (Second Chamber) of 15 March 2006 in Case T-129/04 Develey Holding GmbH & Co. Beteiligungs KG v OHIM, in which the Court of First Instance dismissed the action for annulment of a decision refusing registration of a three-dimensional mark for goods in Classes 29, 30 and 32 in the shape of a plastic bottle — Distinctive character of the mark

Operative part of the judgment

The Court:

1.

Dismisses the appeal;

2.

Orders Develey Holding GmbH & Co. Beteiligungs KG to pay the costs.

(1)  OJ C 212, 2.9.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/17

Judgment of the Court (First Chamber) of 25 October 2007 (reference for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — Fortum Project Finance SA

(Case C-240/06) (1)

(Article 56(1) EC - Directive 69/335/EEC - Article 12(1)(a) and (c) - Exception to the prohibition on double taxation of contributions of capital - Contribution of capital in the form of shares to a company established in another Member State - Exchange of shares - Capital transfer tax)

(2007/C 315/27)

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Applicant: Fortum Project Finance SA

Re:

Reference for a preliminary ruling — Korkein hallinto-oikeus — Interpretation of Article 56 EC and Article 12(1)(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) — Derogation from the prohibition of double taxation concerning tax on capital contributions — Contribution in the form of securities to a company established in another Member State — Share transfer tax

Operative part of the judgment

Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, must be interpreted as meaning that Article 12(1)(c) does not apply to the charging of a duty, such as Finnish capital transfer tax (varainsiirtovero), where securities are transferred as a contribution to a capital company which gives new shares of its own as consideration for that transfer. Article 12(1)(a) of the directive allows such a duty to be charged.

(1)  OJ C 178, 29.7.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/17

Judgment of the Court (Fourth Chamber) of 8 November 2007 (reference for a preliminary ruling from the Unabhängiger Finanzsenat, Außenstelle Linz, Austria) — Firma Ing. Auer — Die Bausoftware GmbH v Finanzamt Freistadt Rohrbach Urfahr

(Case C-251/06) (1)

(Indirect taxes - Raising of capital - Transfer of the seat of a company - Abolition of the capital duty charged to a company)

(2007/C 315/28)

Language of the case: German

Referring court

Unabhängiger Finanzsenat, Außenstelle Linz

Parties to the main proceedings

Applicant: Firma Ing. Auer — Die Bausoftware GmbH

Defendant: Finanzamt Freistadt Rohrbach Urfahr

Re:

Reference for a preliminary ruling — Unabhängiger Finanzsenat — Interpretation of Article 4(1)(a) and (g), Article 4(3)(b) and Article 7(2) 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) — Capital duty charged to a company which has transferred its effective centre of management from a Member State which has abolished capital duty to a Member State which charges capital duty

Operative part of the judgment

Article 4(1)(g) and (3)(b) 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 and by the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, must be interpreted to the effect that the waiver by a Member State of the charging of capital duty does not preclude a company falling within one of the categories referred to in Article 3(1)(a) of that directive from being classified as a capital company for the purposes of charging capital duty within the meaning of Article 4(1)(g) of that directive if its effective centre of management is transferred from that Member State to another Member State in which that duty is still levied. Nevertheless, the result of such an interpretation cannot be to encourage conduct characterised by the putting in place of artificial arrangements with the sole aim of obtaining a fiscal advantage. It is for the national court to verify whether there is objective evidence of action constituting an abusive practice of that kind in the circumstances of the main proceedings.

(1)  OJ C 212, 2.9.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/18

Judgment of the Court (Fourth Chamber) of 8 November 2007 (references for a preliminary ruling from the Cour d'appel de Montpellier, France) — Criminal proceedings against Daniel Escalier (C-260/06), Jean Bonnarel (C-261/06)

(Joined Cases C-260/06 and C-261/06) (1)

(Plant protection products - Parallel imports - Marketing authorisation procedure - Whether permissible - Conditions - Observance of the principle of proportionality)

(2007/C 315/29)

Language of the case: French

Referring court

Cour d'appel de Montpellier, France

Parties in the main criminal proceedings

Daniel Escalier (C-260/06), Jean Bonnarel (C-261/06)

Re:

Reference for a preliminary ruling — Cour d'appel de Montpellier — Interpretation of Articles 28 and 30 of the EC Treaty and of Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1) — National legislation making the importation of a plant protection product from another Member State by a farmer solely for the needs of his own farm when that product already has marketing authorisation in another Member State granted in accordance with Directive 91/414/EEC subject to a simplified authorisation procedure designed to verify that the product meets identity conditions and subject to the payment of a charge of EUR 800

Operative part of the judgment

The Court:

Declares that a Member State may subject to a simplified marketing authorisation procedure the parallel import of a plant protection product from another Member State in which it already has the benefit of such an authorisation, where the importation is made by a farmer solely for the needs of his farm, and the marketing authorisation thus granted is personal to each operator. It cannot be made a condition of that authorisation that the imported product be named with the brand name belonging to the operator concerned where he is a farmer who is making the parallel importation solely for the needs of his own farm. That authorisation cannot be subject to payment of a charge which bears no relation to the costs incurred by the control or the administrative steps needed for examination of the authorisation application. An appraisal of such costs as a fixed sum is however permissible provided that the principle of proportionality is observed.

(1)  OJ C 212, 2.9.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/18

Judgment of the Court (Fourth Chamber) of 25 October 2007 — J.C. Blom v Council of the European Union, Commission of the European Communities

(Case C-344/06 P) (1)

(Appeal - Action for damages - Non-contractual liability - Milk - Additional levy - Reference quantity - Producers who entered into a non-marketing undertaking - SLOM 1983 producers - Failure to resume production on expiry of the undertaking)

(2007/C 315/30)

Language of the case: Dutch

Parties

Appellant: J.C. Blom (represented by: E. Pijnacker Hordijk and S.C.H Molin, advocaten)

Other parties to the proceedings: Council of the European Union (represented by: A.-M. Colaert, Agent), Commission of the European Communities (represented by: T. van Rijn and M. van Heezik, Agents)

Re:

Appeal against the judgment of the Court of First Instance (Fifth Chamber) of 30 May 2006 in Case T-87/94 J.C. Blom v Council and Commission by which the Court dismissed an application for compensation under Article 178 of the EC Treaty (now Article 235 EC) and the second paragraph of Article 215 of the EC Treaty (now the second paragraph of Article 288 EC) for the loss allegedly suffered as a result of the applicant's being prevented from marketing milk pursuant to Council Regulation (EEC) No 857/84 of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Regulation (EEC) No 804/68 in the milk and milk products sector (OJ 1984 L 90, p. 13), as amended by Commission Regulation (EEC) No 1371/84 of 16 May 1984 laying down detailed rules for the application of the additional levy referred to in Article 5c of Regulation No 804/68 (OJ 1984 L 132, p. 11)

Operative part of the judgment

The Court:

1.

Dismisses the appeal;

2.

Orders Mr Blom to pay the costs.

(1)  OJ C 261 of 28.10.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/19

Judgment of the Court (Second Chamber) of 18 October 2007 (reference for a preliminary ruling from the Gerechtshof te Amsterdam (Netherlands)) — J.A. van der Steen v Inspector van de Belastingdienst Utrecht-Gooi/kantoor Utrecht

(Case C-355/06) (1)

(Sixth VAT Directive - Independent economic activity - Private limited company - Company's activities carried out by a natural person as sole director, sole shareholder and sole member of staff)

(2007/C 315/31)

Language of the case: Dutch

Referring court

Gerechtshof te Amsterdam

Parties to the main proceedings

Applicant: J.A. van der Steen

Defendant: Inspector van de Belastingdienst Utrecht-Gooi/kantoor Utrecht

Re:

Reference for a preliminary ruling — Gerechtshof te Amsterdam — Interpretation of Article 4(1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Meaning of independent economic activity — Natural person having the sole activity of actually carrying out all the work of a private limited company as sole director, shareholder and member of staff.

Operative part of the judgment

For the purposes of the application of the second paragraph of Article 4(4) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, a natural person carrying out all work in the name and on behalf of a company that is a taxable person pursuant to a contract of employment binding him to that company of which he is also the sole shareholder, the sole manager and the sole member of staff, is not himself a taxable person within the meaning of Article 4(1) of that Directive.

(1)  OJ C 294, 2.12.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/19

Judgment of the Court (Fifth Chamber) of 25 October 2007 — Commission of the European Communities v Hellenic Republic

(Case C-440/06) (1)

(Failure of a Member State to fulfil obligations - Directive 91/271/EEC - Pollution and nuisance - Treatment of urban waste water - Articles 3 and 4)

(2007/C 315/32)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: S. Pardo Quintillán and M. Konstantinidis, Agents)

Defendant: Hellenic Republic (represented by: E. Skandalou, Agent)

Re:

Failure of a Member State to fulfil obligations — Breach of Articles 3 and 4 of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water (OJ 1991 L 135, p. 40) — Failure to have ensured appropriate treatment of urban waste water in 24 agglomerations

Operative part of the judgment

The Court:

1.

Declares that, by failing to ensure that the agglomerations of Artemida, Chrysoupoli, Igoumenitsa, Heraklion (Crete), Katerini, Koropi, Lefkimmi, Litochoro (Prieria), Malia, Markopoulo, Megara, Nea Kidonia (Crete), Navpaktos, Nea Makri, Parikia (Paros), Poros-Galatas, Rafina, Thessaloniki (tourist zone), Tripoli, Zakynthos, Alexandria (Imathia), Edessa and Kalymnos are, where appropriate, provided with collecting systems for urban waste water meeting the requirements of Article 3 of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water and/or urban waste water treatment systems satisfying the requirements of Article 4 of that directive, the Hellenic Republic has failed to fulfil its obligations under those articles;

2.

Dismisses the remainder of the action;

3.

Orders the Hellenic Republic to pay the costs.

(1)  OJ C 310, 16.12.2003.

22.12.2007   

EN

Official Journal of the European Union

C 315/20

Judgment of the Court (Fourth Chamber) of 18 October 2007 — Commission of the European Communities v French Republic

(Case C-441/06) (1)

(State aid - Duty of recovery - Duty of cooperation)

(2007/C 315/33)

Language of the case: French

Parties

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

Defendant: French Republic (represented by: G. de Bergues and S. Ramet, Agents)

Re:

Failure of a Member State to fulfil obligations — Failure to give effect, within the prescribed period, to Commission Decision 2005/709/EC of 2 August 2004 on the State aid implemented by France for France Télécom (OJ 2005 L 269, p. 30) — Breach of Articles 2 and 3 of the decision and Article 10 EC and the fourth paragraph of Article 249 EC — Obligation to recover aid deemed illegal — Practical difficulties in calculating the precise amount of the aid to be recovered and the existence of an application brought against the decision of the Commission declaring the aid illegal have no impact on that obligation

Operative part of the judgment

The Court:

1.

Declares that, by failing to give effect, within the prescribed period, to Commission Decision 2005/709/EC of 2 August 2004 on the State aid implemented by France for France Télécom, the French Republic has failed to fulfil its obligations under Articles 2 and 3 of that decision, the fourth paragraph of Article 249 EC and Article 10 EC;

2.

Orders the French Republic to pay the costs.

(1)  OJ C 310, 16.12.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/20

Judgment of the Court (Third Chamber) of 18 October 2007 (reference for a preliminary ruling from the Korkein hallinto-oikeus, Finland) — Proceedings brought by Avena Nordic Grain Oy

(Case C-464/06) (1)

(Agriculture - System of export refunds on agricultural products - Regulation (EC) No 800/1999 - Article 5 - Lodging the export declaration - Transmission by fax)

(2007/C 315/34)

Language of the case: Finnish

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Applicant Avena Nordic Grain Oy

Re:

Reference for a preliminary ruling — Korkein hallinto-oikeus — Interpretation of Article 5(5) of Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1999 L 102, p. 11) — Failure to take account of an export declaration sent by fax, the original not reaching the authorities concerned until after loading operations — Principles of proportionality and good administration

Operative part of the judgment

Article 5 of Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Commission Regulation (EC) No 90/2001 of 17 January 2001, must be interpreted as not precluding the competent customs authorities from accepting an export declaration for agricultural products which was transmitted by fax, where that transmission took place before loading for export transport, where the declaration transmitted contains all the information necessary to enable physical checks to be carried out on the goods exported and the export operation concerned is not vitiated by any fraud or attempted fraud. Such is the case where the goods covered by the export declaration transmitted by fax have arrived in the third country of destination and the original declaration subsequently transmitted is identical to the declaration transmitted by fax. It is for the national court to ascertain whether those conditions are satisfied in the main proceedings.

(1)  OJ C 326, 30.12.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/21

Judgment of the Court (Eighth Chamber) of 8 November 2007 — Commission of the European Communities v Kingdom of Belgium

(Case C-3/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2003/110/EC - Assistance in cases of transit - Removal by air - Failure to transpose within the period prescribed)

(2007/C 315/35)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: M. Condou-Durande and R. Troosters, Agents)

Defendant: Kingdom of Belgium (represented by: S. Raskin, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, the measures necessary to comply with Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the purposes of removal by air (OJ 2003 L 321, p. 26)

Operative part of the judgment

The Court:

1.

Declares that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the purposes of removal by air, with the exception of Article 5(2) of that directive, the Kingdom of Belgium has failed to fulfil its obligations thereunder;

2.

Dismisses the action in respect of the failure to transpose Article 5(2) of Directive 2003/110;

3.

Orders the Kingdom of Belgium to pay the costs.

(1)  OJ C 69, 24.3.2007.

22.12.2007   

EN

Official Journal of the European Union

C 315/21

Judgment of the Court (Eighth Chamber) of 8 November 2007 — Commission of the European Communities v Italian Republic

(Case C-40/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2001/42/EC - Assessment of the effects of certain plans and programmes on the environment - Failure to transpose within the period prescribed)

(2007/C 315/36)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: D. Recchia and J.-B. Laignelot, Agents)

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

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, all the measures necessary to comply with Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30)

Operative part of the judgment

The Court:

1.

Declares that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, the Italian Republic has failed to fulfil its obligations under that directive;

2.

Orders the Italian Republic to pay the costs.

(1)  OJ C 82, 14.4.2007.

22.12.2007   

EN

Official Journal of the European Union

C 315/22

Judgment of the Court (Seventh Chamber) of 8 November 2007 — Commission of the European Communities v Czech Republic

(Case C-60/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2004/33/EC - Technical requirements for blood and blood components - Failure to transpose within the period prescribed)

(2007/C 315/37)

Language of the case: Czech

Parties

Applicant: Commission of the European Communities (represented by: M. Šimerdová and L. Pignataro, Agents)

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

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, the measures necessary to comply with Commission Directive 2004/33/EC of 22 March 2004 implementing Directive 2002/98/EC of the European Parliament and of the Council as regards certain technical requirements for blood and blood components (OJ 1998 L 91, p. 25)

Operative part of the judgment

The Court:

1.

Declares that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Commission Directive 2004/33/EC of 22 March 2004 implementing Directive 2002/98/EC of the European Parliament and of the Council as regards certain technical requirements for blood and blood components, the Czech Republic has failed to fulfil its obligations under that directive;

2.

Orders the Czech Republic to pay the costs.

(1)  OJ C 69, 24.3.2007.

22.12.2007   

EN

Official Journal of the European Union

C 315/22

Judgment of the Court (Sixth Chamber) of 8 November 2007 — Commission of the European Communities v French Republic

(Case C-75/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2004/28/EC - Veterinary medicinal products - Failure to transpose within the period prescribed)

(2007/C 315/38)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: B. Stromsky, Agent)

Defendant: French Republic (represented by: G. de Bergues and R. Loosli-Surrans, Agents)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, the measures necessary to comply with Directive 2004/28/EC of the European Parliament and of the Council of 31 March 2004 amending Directive 2001/82/EC on the Community code relating to veterinary medicinal products (OJ 2004 L 136, p. 58)

Operative part of the judgment

The Court

1.

Declares that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Directive 2004/28/EC of the European Parliament and of the Council of 31 March 2004 amending Directive 2001/82/EC on the Community code relating to veterinary medicinal products, the French Republic has failed to fulfil its obligations under Article 3 of that directive;

2.

Orders the French Republic to pay the costs.

(1)  OJ C 95, 28.4.2007.

22.12.2007   

EN

Official Journal of the European Union

C 315/23

Judgment of the Court (Eighth Chamber) of 25 October 2007 — Commission of the European Communities v Czech Republic

(Case C-114/07) (1)

(Failure of a Member State to fulfil obligations - The Community code relating to medicinal products for human use - Directive 2004/24/EC - Traditional herbal medicinal products - Failure to transpose within the prescribed period)

(2007/C 315/39)

Language of the case: Czech

Parties

Applicant: Commission of the European Communities (represented by: B. Stromsky and M. Šimerdová, Agents)

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

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2004/24/EC of the European Parliament and of the Council of 31 March 2004 amending, as regards traditional herbal medicinal products, Directive 2001/83/EC on the Community code relating to medicinal products for human use (OJ 2004 L 136, p. 85)

Operative part of the judgment

The Court:

1.

Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2004/24/EC of the European Parliament and of the Council of 31 March 2004 amending, as regards traditional herbal medicinal products, Directive 2001/83/EC on the Community code relating to medicinal products for human use, the Czech Republic has failed to fulfil its obligations under that directive;

2.

Orders the Czech Republic to pay the costs.

(1)  OJ C 95, 28.4.2007.

22.12.2007   

EN

Official Journal of the European Union

C 315/23

Judgment of the Court (Sixth Chamber) of 8 November 2007 — Commission of the European Communities v Grand Duchy of Luxembourg

(Case C-224/07) (1)

(Failure of a Member State to fulfil obligations - Directive 2004/49/EC - Safety on the Community's railways - Incomplete transposition)

(2007/C 315/40)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: N. Yerrell and P. Dejmek, Agents)

Defendant: Grand Duchy of Luxembourg (represented by: C. Schiltz, Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, the measures necessary to comply with Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community's railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (Railway Safety Directive) (OJ 2004 L 164, p. 44 and corrigendum OJ 2004 L 220, p. 16)

Operative part of the judgment

The Court:

1.

Declares that, by failing to bring into force all the laws, regulations and administrative provisions necessary to comply with Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community's railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (Railway Safety Directive), the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

2.

Orders the Grand Duchy of Luxembourg to pay the costs.

(1)  OJ C 155, 7.7.2007.

22.12.2007   

EN

Official Journal of the European Union

C 315/24

Order of the Court of 11 October 2007 — Hans Peter Wilfer v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-301/05 P) (1)

(Appeal - Community trade mark - Word sign ‘ROCKBASS’ - Refusal to register - No need to adjudicate)

(2007/C 315/41)

Language of the case: German

Parties

Applicant: Hans Peter Wilfer (represented by: A. Kocklauner, Rechtsanwalt)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Schennen, O. Montalto and G. Schneider, Agents)

Re:

Appeal against the judgment of the Court of First Instance (Fourth Chamber) of 8 June 2005 in Case T-315/03 Wilfer v OHIM by which the Court dismissed the action for annulment of the decision refusing to register the mark ‘ROCKBASS’ — Descriptive character of the trade mark

Operative part of the order

1.

There is no need to adjudicate on the appeal brought by Mr Wilfer.

2.

Mr Wilfer is ordered to pay the costs.

(1)  OJ C 281 of 12.11.2005.

22.12.2007   

EN

Official Journal of the European Union

C 315/24

Order of the Court (Eighth Chamber) of 11 September 2007 — Athinaiki Oikogeniaki Artopoiia AVEE v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Ferrero Deutschland GmbH

(Case C-225/06) (1)

(Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) - Similarity between two trade marks - Likelihood of confusion - Application for a Community figurative mark featuring the word element ‘FERRÓ’ - Opposition by the proprietor of the national word mark FERRERO - Partial refusal of registration)

(2007/C 315/42)

Language of the case: English

Parties

Applicant: Athinaiki Oikogeniaki Artopoiia AVEE (represented by: A. Tsavdaridis, dikigoros)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Novais Gonçalves, acting as Agent) Ferrero Deutschland GmbH, successor in title to Ferrero OHG mbH (represented by: M. Schaeffer, Rechtsanwalt)

Re:

Appeal brought against the judgment of the Court of First Instance (Third Chamber) of 15 March 2006 in Case T-35/04 Athinaiki Oikogeniaki Artopoiia AVEE v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) in which the Court dismissed an action for annulment brought by the applicant for the figurative mark ‘FERRÓ’ for goods in Classes 29, 30 and 42 against Decision R 460/2002-1 of the First Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 1 December 2003, dismissing the appeal against the Opposition Division's decision refusing in part to register that mark in the opposition proceedings filed by the holder of the national word mark ‘FERRERO’ for goods in Classes 5, 29, 30, 32 and 33.

Operative part of the order

1.

The appeal is dismissed.

2.

Athinaiki Oikogeniaki Artopoiia AVEE is ordered to pay the costs.

(1)  OJ C 212, 2.9.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/24

Order of the Court of 4 October 2007 — É.R. and Others v Council of the European Union, Commission of the European Communities

(Case C-100/07 P) (1)

(Appeal - Non-contractual liability of the Community - Bovine spongiform encephalopathy - Lack of adequate measures taken by the Council and the European Commission to prevent the spread of the disease - Appeal manifestly unfounded)

(2007/C 315/43)

Language of the case: French

Parties

Applicant: É.R., O.O., J.R., A.R., B.P.R., T.D., J.D., D.D., V.D.; D.E., É.E., C.R.; H.R., M.S.R., I.R., B.R., M.R. and C.S. (represented by: F. Honnorat, lawyer)

Other parties to the proceedings: Council of the European Union (represented by: F. Florindo Gijón and Z. Kupčová, Agents), Commission of the European Communities (represented by: T. van Rijn and G. Berscheid, lawyers)

Re:

Appeal against the judgment of the Court of First Instance (First Chamber) of 13 December 2006 in Case T-138/03 É.R. and Others v Council and Commission, by which the Court dismissed as partially inadmissible and, for the remainder, as unfounded, the action brought by the applicants seeking compensation under Article 235 EC and the second paragraph of Article 288 EC for the damage allegedly suffered as a consequence of the infection and subsequent death of members of their families who suffered from a new variant of Creutzfeldt-Jakob disease, which was linked to the outbreak and spread in Europe of bovine spongiform encephalopathy, for which the Council and the Commission were allegedly responsible — Conditions giving rise to non contractual liability of the Communities

Operative part of the order

1.

The appeal is dismissed.

2.

É.R., O.O., J.R., A.R., B.P.R., T.D., J.D., D.D., V.D.; D.E., É.E.; C.R.; H.R., M.S.R., I.R., B.R., M.R.; and C.S are ordered to pay the costs.

(1)  OJ C 129 of 9.6.2007.

22.12.2007   

EN

Official Journal of the European Union

C 315/25

Reference for a preliminary ruling from the Hof van Beroep te Brussel — Belgium lodged on 24 September 2007 — Belgische Staat v KBC Bank NV

(Case C-439/07)

(2007/C 315/44)

Language of the case: Dutch

Referring court

Hof van Beroep te Brussel

Parties to the main proceedings

Applicant: Belgische Staat

Defendant: KBC Bank NV

Questions referred

1.

Must Council Directive 90/435/EEC (1) of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States, in particular Article 4(1), first indent, thereof, be construed as precluding a situation in which a Member State applies the exemption relating to distributed profits received by a company of that State from its subsidiary in another Member State, except when the subsidiary is liquidated, by first including in full the distributed profits in the taxable basis and then deducting 95 % of those profits from the taxable basis but limiting the deduction to the amount of profits made in the taxable period in which the distribution of profits took place (after certain statutorily defined deductions) (Article 205(2) WIB/92 [Belgian Income Tax Code 1992] in conjunction with Article 77 KB/WIB.92 [Royal Decree implementing the Income Tax Code 1992]), in view of the fact that the result of such a limitation of the deduction of distributed profits is that, if the parent company had no or insufficient taxable profits during the taxable period in which the distributed profits were received, it would in a subsequent taxable period be taxed on those distributed profits which it had received, or at least that the losses of that taxable period would be offset by means of distributed profits, 95 % of which must remain untaxed pursuant to Article 4(1), first indent, in conjunction with Article 4(2), of Directive 90/435 and that consequently those losses, in the amount of the distributed profits received, could no longer be carried forward to a subsequent taxable period?

2.

If the aforementioned Directive 90/435/EEC is to be construed as meaning that the Belgian rule is contrary to Article 4(1), first indent, of the Directive with regard to distributed profits received by a Belgian parent company from a subsidiary established within the EU, must it then be determined that that provision of the Directive is also incompatible with the application of the Belgian rule to distributed profits received by a Belgian parent company from a Belgian subsidiary where, as in the present case, the Belgian legislature, in transposing the Directive into Belgian law, has chosen to apply the same treatment to purely internal situations and to those governed by the Directive and has therefore aligned the Belgian legislation with the Directive also for purely internal situations?

3.

If Directive 90/435/EEC must be taken to mean that the Belgian rule is contrary to Article 4(1), first indent, of the Directive with regard to distributed profits received by a Belgian parent company from a subsidiary established in the EU and the Leur-Bloem judgment of the Court of Justice (Case C-28/95 Leur-Bloem [1995] ECR I-4161) is extended to cover distributed profits received from a subsidiary established in Belgium, is it then contrary to Article 56(1) EC for Belgium to continue to apply the legislative provision in question, unchanged, to dividends originating from subsidiaries established in non-member countries, on the ground that the latter dividends are then treated less favourably than domestic dividends or EU dividends?

4.

Does Article 43 EC preclude the application of a legislative rule of a Member State under which, for the purposes of assessment to corporation tax, the exemption of the distributed profits received during a taxable period by a company from its subsidiary established in another Member State is limited in the first Member State to the amount of the profit made in the taxable period during which the profits were distributed (after certain statutorily defined deductions), whereas a full exemption of the distributed profits would be possible if that company had set up a permanent establishment in that other Member State?

(1)  OJ 1990 L 225, p. 6.

22.12.2007   

EN

Official Journal of the European Union

C 315/26

Reference for a preliminary ruling from the Najvyšší súd Slovenskej republiky lodged on 9 October 2007 — Karol Mihal v Daňový úrad Košice V

(Case C-456/07)

(2007/C 315/45)

Language of the case: Slovak

Referring court

Najvyšší súd Slovenskej republiky

Parties to the main proceedings

Applicant: Karol Mihal

Defendant: Daňový úrad Košice V

Questions referred

1.

Is the first subparagraph of Article 4(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 (‘the Sixth Directive’) to be interpreted as relating only to those bodies governed by public law which are legal persons and not natural persons; in other words, in respect of the activities or transactions in which they engage as public authorities, are those bodies governed by public law which are legal persons to be considered non-taxable persons whilst those bodies governed by public law which are natural persons are to be considered taxable persons?

2.

Where national legislation contains a more restrictive definition of the group of persons not considered to be taxable persons (non-taxable persons) than that contained in the first subparagraph of Article 4(5) of the Sixth Directive, is the first subparagraph of Article 4(5) of the Sixth Directive to be considered as being directly effective?

3.

Are the activities of a natural person, such as those of a bailiff who exercises public power and is considered under national law to be a public official, to be considered those of a body governed by public law, in other words, is he not to be considered a taxable person in respect of activities and transactions in which he is involved as a public authority within the meaning of the first subparagraph of Article 4(5) of the Sixth Directive?

22.12.2007   

EN

Official Journal of the European Union

C 315/26

Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria) lodged on 11 October 2007 — Sandra Puffer v Unabhängiger Finanzsenat, Außenstelle Linz

(Case C-460/07)

(2007/C 315/46)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Sandra Puffer

Defendant: Unabhängiger Finanzsenat, Außenstelle Linz

Questions referred

1.

Does 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 (1) (‘the Sixth Directive’), in particular Article 17 thereof, infringe fundamental rights under Community law (the Community-law principle of equal treatment) because it has the effect of enabling persons liable to pay value added tax (VAT) to acquire ownership of residential properties for their own private residential purposes (consumption) for approximately 5 % less than other EU citizens, with the final value of that advantage rising indefinitely in line with the level of acquisition and construction costs of the residential property in question? Does such an infringement arise also as a result of the fact that persons liable to pay VAT can acquire ownership of residential properties used for their own private residential purposes — where such properties are used, even minimally, in connection with their business — for approximately 5 % less than other taxable persons who do not use their private dwellings, even minimally, in connection with their business?

2.

Does national legislation implementing the Sixth Directive, in particular Article 17 thereof, infringe Article 87 EC because, while the legislation does allow persons liable to pay VAT who carry out taxable transactions the advantage referred to in Question 1 in respect of properties which they use for private residential purposes, that advantage is not available to taxable persons whose transactions are exempt?

3.

Does Article 17(6) of the Sixth Directive continue to have effect if the national legislature amends a national provision for the exclusion of deductions (in this case, Paragraph 12(2)(1) of the Austrian Umsatzsteuergesetz (UStG) (Law on Turnover Tax) 1994), which is based on Article 17(6) of the Sixth Directive, with the express intention of retaining that exclusion of deductions, and the Austrian UStG would indeed result in the retention of an exclusion of deductions, but — owing to an error in the interpretation of Community law (in this case Article 13B(b) of the Sixth Directive) which was only subsequently identified — the national legislature introduced a provision which, viewed in isolation, would, according to Community law (Article 13B(b) of the Sixth Directive as interpreted in Case C-269/00 Seeling [2003] ECR I-4101), allow a deduction to be made?

4.

If the answer to Question 3 is in the negative:

Could the effect of an exclusion of deductions (Paragraph 12(2)(2)(a) of the UStG 1994) which is based on the ‘standstill clause’ (Article 17(6) of the Sixth Directive) be restricted if the national legislature amends one of two overlapping national provisions excluding deductions (Paragraph 12(2)(2)(a) of the UStG 1994 and Paragraph 12(2)(1) of the UStG 1994) and subsequently does not proceed further because it finds that it has erred in law?

(1)  OJ 1977 L 145, p. 1.

22.12.2007   

EN

Official Journal of the European Union

C 315/27

Reference for a preliminary ruling from the Monomeles Protodikio Livadias (Livadia Court of First Instance) lodged on 22 October 2007 — Panagiotis Koskovolis and Ekaterini Pappa v Municipality of Kiriaki, Beotia

(Case C-467/07)

(2007/C 315/47)

Language of the case: Greek

Referring court

Livadia Court of First Instance

Parties to the main proceedings

Claimants: Panagiotis Koskovolis and Ekaterini Pappa

Defendant: Municipality of Kiriaki

Questions referred

1.

Do clause 5 and clause 8(1) and (3) of the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP, which forms an integral part of Council Directive 1999/70/EC (OJ 1999 L 175 p. 43), mean that Community law (by reason of the application of the said Framework Agreement) does not allow a Member State to adopt measures

(a)

where an equivalent legal measure within the meaning of clause 5(1) of the Framework Agreement already existed under national law before the directive entered into force and

(b)

where the measures adopted in order to apply the Framework Agreement reduce the general level of protection afforded to fixed-term workers under national law?

2.

If question 1 is answered in the affirmative, where there is an equivalent legal measure under national law, within the meaning of clause 5(1) of the Framework Agreement, which existed before Directive 1999/70/EC entered into force, such as Article 8(3) of Law 2112/1920 at issue in the main proceedings, is the adoption of a legal measure by reason of the application of the Framework Agreement, such as Article 11 of Presidential Decree 164/2004 at issue in the main proceedings, an unacceptable reduction in the general level [of protection] afforded to fixed-term workers under national law within the meaning of clause 8(1) and (3) of the Framework Agreement:

(a)

when the legal measure in question applying the Framework Agreement was adopted after the time-limit for transposing Directive 1999/70/EC had elapsed, but only fixed-term employment contracts and relationships which were in effect before its entry into force or had expired within a certain period before its entry into force but after the time-limit for transposing the Directive had elapsed fall within its chronological scope, although the equivalent legal measure which already existed does not have a chronologically restricted scope of application and covers all fixed-term employment contracts which had been concluded, were in effect or had expired when Directive 1999/70/EC came into force and the time-limit for its transposition had elapsed;

(b)

when fixed-term employment contracts or relationships only fall within the scope of application of the legal measure in question applying the Framework Agreement if they can be regarded as successive within the meaning of that measure, satisfying the cumulative requirements:

(i)

that there is a maximum period of three months between them;

(ii)

that they extend for a total of at least 24 months before the measure in question enters into force, irrespective of the number of contract renewals or that, on the basis of those renewals, there has been a minimum total period of work of 18 months over an overall period of 24 months from the original contract, provided that there are at least three renewals since the original contract, whereas the existing equivalent legal measure does not lay down such conditions but covers all the fixed-term (successive) employment contracts, irrespective of a minimum total period of work and a minimum number of contract renewals;

(c)

when the legal measure in question applying the Framework Agreement provides as a legal consequence for the protection of fixed-term workers and the prevention of abuse, within the meaning of the Framework Agreement on fixed-term work, for the qualification thereafter (ex nunc) of fixed-term employment contracts as contracts of indefinite duration, whereas the pre-existing legal measure provides for the qualification of fixed-term contracts as contracts of indefinite duration from the time they were originally concluded (ex tunc)?

3.

If question 1 is answered in the affirmative, where an equivalent legal measure within the meaning of clause 5(1) of the Framework Agreement on fixed-term work, which forms an integral part of Directive 1999/70/EC, already existed in the national legal order before that directive entered into force, as in the case of Article 8(3) of Law 2112/1920 at issue in the main proceedings, is the adoption of a legal measure by reason of the application of the Framework Agreement, such as Article 7 of Presidential Decree 164/2004 at issue in the main proceedings, an unacceptable reduction in the general level of protection afforded to fixed-term workers under national law within the meaning of clause 8(1) and (3) of the Framework Agreement, when that provides, as the sole means of protection of fixed-term workers from abuse, for an obligation on the part of the employer to pay wages and severance pay where workers have wrongfully been employed under successive fixed-term employment contracts, bearing in mind

(a)

that the obligation to pay wages and severance pay is provided for under national law for all employment relationships and is not intended specifically to prevent abuse within the meaning of the Framework Agreement, and

(b)

that the legal consequence of the application of the earlier equivalent legal measure is that successive fixed-term contracts of employment are recognised as a contract of indefinite duration?

4.

If all the above questions are answered in the affirmative, should the national court, in interpreting national law in accordance with Directive 1999/70/EC, disapply the provisions of the legal measure which are not compatible with it, but which were adopted by reason of the application of the Framework Agreement and result in a reduction in the general level of protection afforded to fixed-term workers under national law, such as Articles 7 and 11 of Presidential Decree 164/2004, and apply instead an equivalent legal measure which existed before the directive entered into force, such as Article 8(3) of Law 2112/1920?

5.

If the national court finds that — in principle — a provision that constitutes an equivalent legal measure within the meaning of clause 5(1) of the Framework Agreement on fixed-term work, which is an integral part of Directive 1999/70/EC, is applicable to a dispute over fixed-term work and, on the basis of that provision, the finding that successive contracts of employment were concluded as a fixed-term contract for no objective reason relating to the nature, type or features of the work offered means that the contracts must be recognised as a contract of employment of indefinite duration, then

(a)

is it compatible with Community law for a national court to interpret and apply national law to the effect that the fact that a legal provision governing employment under a fixed-term contract of employment in order to meet seasonal, periodic, temporary or exceptional needs was used as the legal basis for concluding a fixed-term contract constitutes an objective reason in all cases for concluding such contracts, even though the requirements covered were in fact fixed and permanent, and

(b)

is it compatible with Community law for a national court to interpret and apply national law to the effect that a provision prohibiting the conversion of fixed-term contracts of employment in the public sector to contracts of indefinite duration must be construed as a prohibition in any circumstance to convert a fixed-term employment contract or relationship in the public sector to an employment contract or relationship of indefinite duration, even if it was wrongfully concluded as a fixed-term contract, although it could be construed to the effect that the prohibition in question must be restricted solely to fixed-term contracts of employment which were in fact concluded in order to meet temporary, unforeseeable, urgent or exceptional requirements and not to cases in which they were in fact concluded in order to meet fixed and permanent requirements?

22.12.2007   

EN

Official Journal of the European Union

C 315/29

Action brought on 24 October 2007 — Commission of the European Communities v Hellenic Republic

(Case C-470/07)

(2007/C 315/48)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: G Zabbos and N Yerrell, acting as Agents)

Defendant: Hellenic Republic

Form of order sought

—

Declare that the Hellenic Republic, by not adopting the laws regulations and administrative provisions necessary to comply with Directive 2004/54/EC (1) of the European Parliament and of the Council of 29 April 2004 on minimum safety requirements for tunnels in the Trans-European Road Network, and in any event by not communicating such measures to the Commission, has failed to fulfil its obligations under that directive

—

order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for the transposition of the directive into national law expired on 30 April 2006.

(1)  OJ L 167 of 30.4.2004, p. 39.

22.12.2007   

EN

Official Journal of the European Union

C 315/29

Action brought on 31 October 2007 — Commission of the European Communities v Kingdom of Spain

(Case C-480/07)

(2007/C 315/49)

Language of the case: Spanish

Parties

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

Defendant: Kingdom of Spain

Form of order sought

—

to declare that, by failing to develop, approve and implement waste reception and handling plans for all its ports, the Kingdom of Spain has failed to fulfil its obligations under Articles 5(1) and 16(1) of Directive 2000/59/EC (1) of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues;

—

to order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

It is apparent from a combined reading of Articles 5(1) and 16(1) of Directive 2000/59 that the Kingdom of Spain was required to adopt, before 28 December 2002, the provisions necessary to ensure the development and implementation of a suitable waste reception and handling plan for every Spanish port.

It is evident from the information supplied up until that date by the Spanish authorities that waste reception and handling plans have been developed and implemented for all the ports of general interest owned by the State and the ports under the jurisdiction of the Autonomous Community of Galicia. By contrast, it is apparent from that information that such plans have not yet been developed and/or approved in respect of all the ports subject to the jurisdiction of one of the remaining coastal autonomous communities, namely, Catalonia, the Balearics, Valencia, Murcia, Andalusia, the Canaries, Asturias, Cantabria and the Basque country.

(1)  OJ 2000 L 332, p. 81.

22.12.2007   

EN

Official Journal of the European Union

C 315/30

Action brought on 7 November 2007 — Commission of the European Communities v Republic of Cyprus

(Case C-490/07)

(2007/C 315/50)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: M. Patakia, A. Alcover San Pedro)

Defendant: Republic of Cyprus

Form of order sought

The Court is asked to:

—

declare, that,

—

by failing to set in place a system to promote the recovery, recycling, reclamation and destruction of controlled substances,

—

by applying a system for managing controlled substances based on the storing of old equipment containing used controlled substances until appropriate installations have been constructed or until they are sent abroad for disposal,

—

by failing to report the quantities of used controlled substances recovered, recycled, reclaimed or destroyed,

—

by having training programmes which are voluntary, without having put in place a legal framework to define the minimum qualification requirements for the personnel involved with the recycling of controlled substances contained in refrigeration, air conditioning and heat pump equipment, equipment containing solvents and fire protection systems and extinguishers,

—

by failing to take every possible precautionary measure to ensure that fixed equipment with a refrigerating fluid charge of more than 3 kg is checked for leakages annually and by failing to lay down minimum qualification requirements for the personnel involved,

the Hellenic Republic has failed to fulfil its obligations under Article 16(1) and (5), first and second indents, and Article 17(1) of Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer;

—

order the Republic of Cyprus to pay the costs.

Pleas in law and main arguments

1.

The authorities of the Republic of Cyprus submitted a report, on 6 April 2005, to the Commission concerning the application of Articles 16 and 17 of Regulation No 2037/2000/EC on substances that deplete the ozone layer.

2.

Having studied that report, the Commission found that the Republic of Cyprus had not put in place a system of measures to promote the recovery, recycling, reclamation and destruction of controlled substances, including the relevant installations, nor had it enacted legislation designating those responsible for collecting and dismantling or disposal in of controlled substances.

3.

The Commission also found that the necessary full legal framework laying down the minimum qualification requirements for personnel involved in the recycling of controlled substances did not exist and that the existing training programmes were voluntary.

4.

Lastly, the Commission found that, as regards the requirements that equipment with a refrigerating fluid charge of more than 3 kg be checked for leakages annually and that minimum qualification requirements for the personnel involved be defined, the adoption of the relevant national legislation is still pending.

5.

The Commission consequently considers that the Republic of Cyprus has failed to fulfil its obligations under Article 16(1) and (5), first and second indents, and Article 17(1) of Regulation No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer.

22.12.2007   

EN

Official Journal of the European Union

C 315/30

Action brought on 9 November 2007 — Commission of the European Communities v Slovak Republic

(Case C-493/07)

(2007/C 315/51)

Language of the case: Slovak

Parties

Applicant: Commission of the European Communities (represented by G. Braun and J. Javorský, acting as Agents)

Defendant: Slovak Republic

Form of order sought

—

declare that, by failing to ensure that that undertakings which operate public telephone networks make caller location information available to authorities handling emergencies for calls to the single European emergency call number ‘112’, the Slovak Republic has failed to fulfil its obligations under Article 26(3) of Directive 2002/22/EC (1);

—

order the Slovak Republic to pay the costs.

Pleas in law and main arguments

The period for adopting measures to transpose the directive expired on 24 July 2003.

(1)  Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive), OJ 2002 L 108, p. 51.

22.12.2007   

EN

Official Journal of the European Union

C 315/31

Order of the President of the Fourth Chamber of the Court of 27 September 2007 (reference for a preliminary ruling from the Tribunale Civile Di Genova — Italy) — Alessandro Tedesco v Tomasoni Fittings SrL, RWO Marine Equipment Ltd

(Case C-175/06) (1)

(2007/C 315/52)

Language of the case: Italian

The President of the Fourth Chamber of the Court has ordered that the case be removed from the register.

(1)  OJ C 154, 1.7.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/31

Order of the President of the Eighth Chamber of the Court of 21 September 2007 — Commission of the European Communities v Hellenic Republic

(Case C-426/06) (1)

(2007/C 315/53)

Language of the case: Greek

The President of the Eighth Chamber of the Court has ordered that the case be removed from the register.

(1)  OJ C 326, 30.12.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/31

Order of the President of the Court of 22 October 2007 — Commission of the European Communities v Italian Republic

(Case C-530/06) (1)

(2007/C 315/54)

Language of the case: Italian

The President of the Court has ordered that the case be removed from the register.

(1)  OJ C 42, 24.2.2007.

22.12.2007   

EN

Official Journal of the European Union

C 315/31

Order of the President of the Court of 8 October 2007 — Commission of the European Communities v Ireland

(Case C-21/07) (1)

(2007/C 315/55)

Language of the case: English

The President of the Court has ordered that the case be removed from the register.

(1)  OJ C 56, 10.3.2007.

22.12.2007   

EN

Official Journal of the European Union

C 315/31

Order of the President of the Court of 19 July 2007 — Commission of the European Communities v Hellenic Republic

(Case C-29/07) (1)

(2007/C 315/56)

Language of the case: Greek

The President of the Court has ordered that the case be removed from the register.

(1)  OJ C 56, 10.3.2007.

22.12.2007   

EN

Official Journal of the European Union

C 315/32

Order of the President of the Court of 19 July 2007 — Commission of the European Communities v Hellenic Republic

(Case C-53/07) (1)

(2007/C 315/57)

Language of the case: Greek

The President of the Court has ordered that the case be removed from the register.

(1)  OJ C 69, 24.3.2007.

22.12.2007   

EN

Official Journal of the European Union

C 315/32

Order of the President of the Court of 8 October 2007 — Commission of the European Communities v Ireland

(Case C-64/07) (1)

(2007/C 315/58)

Language of the case: English

The President of the Court has ordered that the case be removed from the register.

(1)  OJ C 69, 24.3.2007.

22.12.2007   

EN

Official Journal of the European Union

C 315/32

Order of the President of the Court of 2 August 2007 — Commission of the European Communities v Hellenic Republic

(Case C-77/07) (1)

(2007/C 315/59)

Language of the case: Greek

The President of the Court has ordered that the case be removed from the register.

(1)  OJ C 69, 23.4.2005.

22.12.2007   

EN

Official Journal of the European Union

C 315/32

Order of the President of the Court of 20 September 2007 — Commission of the European Communities v Hellenic Republic

(Case C-83/07) (1)

(2007/C 315/60)

Language of the case: Greek

The President of the Court has ordered that the case be removed from the register.

(1)  OJ C 69, 24.3.2007.

Court of First Instance

22.12.2007   

EN

Official Journal of the European Union

C 315/33

Judgment of the Court of First Instance of 15 November 2007 — Sunplus Technology v OHIM — Sun Microsystems (SUN PLUS)

(Case T-38/04) (1)

(Community trade mark - Opposition proceedings - Application for figurative mark SUNPLUS - Earlier national word mark SUN - Likelihood of confusion - Similarity between goods - Similarity between marks)

(2007/C 315/61)

Language of the case: English

Parties

Applicant: Sunplus Technology Co. Ltd (Hsinchu, Taiwan) (represented by: H. Eichmann, G. Barth, U. Blumenröder, C. Niklas-Falter, M. Kinkeldey, K. Brandt, A. Franke, U. Stephani, B. Allekotte, E. Pfrang, K. Lochner, B. Ertle, C. Neuhierl and S. Prückner, Lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM, intervening before the Court of First Instance: Sun Microsystems, Inc. (Palo Alto, California, United States of America) (represented by: M. Graf, Lawyer)

Re:

Action brought against the decision of the Fourth Board of Appeal of OHIM of 7 October 2003 (Case R 642/2000-4) relating to opposition proceedings between Sun Microsystems, Inc. and Sunplus Technology Co. Ltd.

Operative part of the judgment

The Court:

1.

Dismisses the action;

2.

Orders Sunplus Technology Co. Ltd to pay the costs.

(1)  OJ C 94, 17.4.2004.

22.12.2007   

EN

Official Journal of the European Union

C 315/33

Judgment of the Court of First Instance of 8 November 2007 — Bavarian Lager v Commission

(Case T-194/04) (1)

(Access to documents - Regulation (EC) No 1049/2001 - Documents relating to proceedings for failure to fulfil obligations - Decision refusing access - Protection of physical persons in relation to processing of personal data - Regulation (EC) No 45/2001 - Concept of private life)

(2007/C 315/62)

Language of the case: English

Parties

Applicant: The Bavarian Lager Co. Ltd (Clitheroe, United Kingdom) (represented by: initially J. Pearson and C. Bright, and subsequently by J. Webber and M. Readings, solicitors)

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

Intervener in support of the applicant: European Data Protection Supervisor (EDPS), (represented by: H. Hijmans, Agent)

Re:

Application for annulment of the Commission Decision of 18 March 2004 refusing an application by the applicant for full access to the minutes of a meeting held in connection with proceedings for failure to fulfil Treaty obligations and for a declaration that the Commission wrongly terminated the proceedings brought against the Government of the United Kingdom of Great Britain and Northern Ireland under Article 169 of the EC Treaty (now Article 226 EC)

Operative part

The Court:

1.

Annuls the Commission's decision of 18 March 2004, rejecting an application for access to the full minutes of the meeting of 11 October 1996, containing all the names;

2.

Orders the Commission to pay the costs incurred by The Bavarian Lager Co. Ltd;

3.

Orders the European Data Protection Supervisor (EDPS) to bear his own costs.

(1)  OJ C 201, 7.8.2004.

22.12.2007   

EN

Official Journal of the European Union

C 315/34

Judgment of the Court of First Instance of 8 November 2007 — The Netherlands v Commission

(Case T-234/04) (1)

(Action for annulment - Decision 2004/01/EC - Dangerous substances - Authorisation by the Commission required to maintain notified national provisions - Position adopted by the Commission on the extent of harmonisation - Challengeable act - Inadmissibility)

(2007/C 315/63)

Language of the case: Dutch

Parties

Applicant: Kingdom of the Netherlands (represented by: H. Sevenster, J. van Bakel and M. de Grave, Agents)

Defendant: Commission of the European Communities (represented by: F. Simonetti and M. van Beek, Agents)

Intervener in support of the applicant: Kingdom of Denmark (represented by J. Molde, Agent)

Re:

ACTION for annulment of Commission Decision 2004/1/EC of 16 December 2003 concerning national provisions on the use of short-chain chlorinated paraffins notified by the Kingdom of the Netherlands under Article 95(4) [EC] (OJ 2004 L 1, p. 20), in so far as, in that decision, the Commission takes the view that its approval under Article 95(6) EC is required for the maintenance of Netherlands legislation on the uses of short-chain chlorinated paraffins to which no reference is made in Directive 2002/45/EC of the European Parliament and of the Council of 25 June 2002 amending for the 20th time Council Directive 76/769/EEC relating to restrictions on the marketing and use of certain dangerous substances and preparations (short-chain chlorinated paraffins) (OJ 2002 L 177, p. 21)

Operative part of the judgment

The Court:

1.

Dismisses the action as inadmissible;

2.

Orders the Kingdom of the Netherlands to bear its own costs and to pay those incurred by the Commission;

3.

Orders the Kingdom of Denmark to bear its own costs.

(1)  OJ C 94, 17.4.2004 (formerly Case C-103/04).

22.12.2007   

EN

Official Journal of the European Union

C 315/34

Judgment of the Court of First Instance of 7 November 2007 — Germany v Commission

(Case T-374/04) (1)

(Environment - Directive 2003/87/EC - Scheme for greenhouse gas emission allowance trading - German national allocation plan for emission allowances - Measures for the ex-post adjustment of the amount of allowances allocated to installations - Commission rejection decision - Equal treatment - Duty to state reasons)

(2007/C 315/64)

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented initially by C.D. Quassowski, A. Tiemann and C. Schulze-Bahr, and subsequently by C. Schulze-Bahr and M. Lumma, Agents, and by D. Sellner and U. Karpenstein, lawyers)

Defendant: Commission of the European Communities (represented by: U. Wölker, Agent)

Re:

Application for partial annulment of Commission Decision C(2004) 2515/2 final of 7 July 2004 concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the Federal Republic of Germany in accordance with 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), in so far as in the decision the Commission rejects certain measures for the ex-post adjustment of allowances as incompatible with criteria 5 and 10 of Annex III to the directive.

Operative part of the judgment

The Court:

1.

Annuls Article 1 of Commission Decision C(2004) 2515/2 final of 7 July 2004 concerning the national allocation plan for the allocation of greenhouse gas emission allowances notified by the Federal Republic of Germany in accordance with 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;

2.

Annuls Article 2(a) to (c) of that decision in so far as it directs the Federal Republic of Germany, first, to omit the measures for ex-post adjustment which are referred to therein and, second, to notify the Commission of their omission;

3.

Orders the Commission to pay the costs.

(1)  OJ C 284, 20.11.2004.

22.12.2007   

EN

Official Journal of the European Union

C 315/35

Judgment of the Court of First Instance of 6 November 2007 — Omega v OHIM — Omega Engineering (Ω OMEGA)

(Case T-90/05) (1)

(Community trade mark - Opposition proceedings - Application for the figurative and word Community trade mark Ω OMEGA - Earlier national word mark OMEGA - Relative ground for refusal - Reliance by the applicant for the Community trade mark on a national trade mark identical to that applied for and earlier than the national mark cited in opposition - Likelihood of confusion)

(2007/C 315/65)

Language of the case: English

Parties

Applicant: Omega SA (Bienne, Switzerland) (represented initially by: P. González-Bueno Catalán de Ocón and E. Armijo Chávarri, and subsequently by P. González-Bueno Catalán de Ocón, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Omega Engineering, Inc. (Stamford, Connecticut, United States) (represented by: C. Algar, Solicitor)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 10 December 2004 (Case R 330/2002-2) relating to opposition proceedings between Omegal Engineering, Inc. and Omega SA.

Operative part of the judgment

The Court:

1.

Dismisses the action;

2.

Orders Omega SA to pay the costs.

(1)  OJ C 115, 14.5.2005.

22.12.2007   

EN

Official Journal of the European Union

C 315/35

Judgment of the Court of First Instance of 6 November 2007 — SAEME v OHIM — Racke (REVIAN's)

(Case T-407/05) (1)

(Community trade mark - Opposition proceedings - Application for figurative Community trade mark REVIAN's - Earlier non-Community trade mark evian - Late submission of the translation of the registration certificate for an earlier mark - Discretion granted by Article 74(2) of Regulation (EC) No 40/94)

(2007/C 315/66)

Language of the case: German

Parties

Applicant: Société anonyme des eaux minérales d'Évian (SAEME) (Évian-les-Bains, France) (represented by: C. Hertz-Eichenrode, lawyer)

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

Other party to the proceedings before the Board of Appeal of OHIM and intervener before the Court of First Instance: A. Racke GmbH & Co. OHG (Bingen, Germany) (represented by: N. Schindler, lawyer)

Re:

Action against the decision of the Fourth Board of Appeal of OHIM of 22 July 2005 (Case R 82/2002 4) relating to opposition proceedings between Société anonyme des eaux minérales d'Évian (SAEME) and A. Racke GmbH & Co. OHG, and also against decision No 2754/2001 of the Opposition Division of OHIM of 23 November 2001.

Operative part of the judgment

1.

Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 22 July 2005 (Case R 82/2002 4);

2.

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

3.

Orders the intervener to bear its own costs.

(1)  OJ C 22, 28.1.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/36

Judgment of the Court of First Instance of 8 November 2007 — MPDV Mikrolab v OHIM (manufacturing score card)

(Case T-459/05) (1)

(Community trade mark - Community trade mark application in respect of manufacturing score card word mark - Absolute grounds for refusal - Descriptiveness - Lack of distinctive character - Article 7(1)(b) and (c) of Regulation(EC) No 40/94)

(2007/C 315/67)

Language of the case: German

Parties

Applicant: MPDV Mikrolab GmbH, Mikroprozessordatenverarbeitung und Mikroprozessorlabor (Mosbach, Germany) (represented by: W. Göpfert, lawyer)

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

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 19 October 2005 (Case R 1059/2004-2) concerning an application for registration of the manufacturing score card word mark as a Community trade mark

Operative part of the judgment

The Court:

1.

Dismisses the appeal;

2.

Orders MPDV Mikrolab GmbH, Mikroprozessordatenverarbeitung und Mikroprozessorlabor to pay the costs.

(1)  OJ C 60 of 11.3.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/36

Judgment of the Court of First Instance of 6 November 2007 — RheinfelsQuellen H. Hövelmann v OHIM (VOM URSPRUNG HER VOLLKOMMEN)

(Case T-28/06) (1)

(Community trade mark - Application for the Community word mark VOM URSPRUNG HER VOLLKOMMEN - Absolute grounds for refusal - Descriptive character - Article 7(1)(b) and 7(1)(c) of Regulation (EC) No 40/94)

(2007/C 315/68)

Language of the case: German

Parties

Applicant: RheinfelsQuellen H. Hövelmann GmbH & Co. KG, Duisburg, Germany, (represented by: W. Kellenter and A. Lambrecht, lawyers)

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

Re:

Appeal against the decision of the Second Board of Appeal of OHIM of 17 November 2005 (Case R 1179/2004-2) concerning an application for registration of the word mark VOM URSPRUNG HER VOLKOMMEN as a Community trade mark

Operative part of the judgment

The Court:

1.

Dismisses the action;

2.

Orders RheinfelsQuellen H. Hövelmann GmbH & Co. KG to pay the costs.

(1)  OJ C 86, 8.4.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/37

Judgment of the Court of First Instance of 7 November 2007 — Marly v OHIM — Erdal (Top iX)

(Case T-57/06) (1)

(Community trade mark - Opposition proceedings - Application for figurative Community trade mark Top iX - Earlier international word mark TOFIX - Relative ground for refusal - Absence of likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 - Request for proof of genuine use of the earlier mark submitted for the first time before the Court - Inadmissibility)

(2007/C 315/69)

Language of the case: French

Parties

Applicant: NV Marly SA (Brussels, Belgium) (represented by: B. Mouffe and O. Rodesch, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: S. Petrequin and A. Rassat, acting as Agents)

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Erdal GmbH (Hallein, Austria) (represented by: M. Thewes and V. Wiot, lawyers)

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 14 December 2005 (Case R 1147/2004-2) concerning opposition proceedings between Erdal GmbH and NV Marly SA.

Operative part of the judgment

The Court:

1.

Dismisses the action;

2.

Orders NV Marly SA to pay the costs.

(1)  OJ C 96, 22.4.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/37

Judgment of the Court of First Instance of 15 November 2007 — Enercon v OHIM (Wind turbine)

(Case T-71/06) (1)

(Community trade mark - Application for a three-dimensional Community trade mark depicting the outer casing of the nacelle of a wind turbine - Absolute grounds for refusal - Lack of distinctive character - Article 7(1)(b) and (3) of Regulation (EC) No 40/94)

(2007/C 315/70)

Language of the case: German

Parties

Applicant: Enercon (Aurich, Germany) (represented by: R. Böhm, lawyer)

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

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 30 November 2005 (Case R 179/2005-2) refusing registration of a three-dimensional mark (a section of a wind turbine in the form of an American football) as a Community trade mark.

Operative part of the judgment

The Court:

1.

Dismisses the action.

2.

Orders Enercon GmbH to pay the costs.

(1)  OJ C 108 of 6.5.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/38

Judgment of the Court of First Instance of 14 November 2007 — Castell del Remei v OHIM — Bodegas Roda (Castell del Remei ODA)

(Case T-101/06) (1)

(Community trade mark - Opposition proceedings - Application for figurative Community trade mark Castell del Remei ODA - Earlier international word mark RODA and earlier national trade marks RODA, RODA I, RODA II and BODEGAS RODA - Absolute ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2007/C 315/71)

Language of the case: Spanish

Parties

Applicant: Castell del Remei SL (Castell del Remei, Spain) (represented by: F. de Visscher, E. Cornu, D. Moreau, J. Grau Mora, A. Angulo Lafora, M. Ferrándiz Avendaño, M.Baylos Morales and A. Velásquez Ibáñez, lawyers)

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

Other party to the proceedings before the Board of Appeal of OHIM: Bodegas Roda SA (La Rioja, Spain) (represented by: M. López Camba, B. García Peces and J. Grimau Muñoz, lawyers)

Re:

Action brought against the decision of the First Board of Appeal of OHIM of 17 January 2006 (Case R 263/2005-1) relating to opposition proceedings between Bodegas Roda SA and Castell del Remei SL.

Operative part of the judgment

The Court:

1.

Dismisses the action.

2.

Orders the applicant to pay the costs.

(1)  OJ C 121 of 20.5.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/38

Judgment of the Court of First Instance of 8 November 2007 — Charlott v OHIM — Charlo (Charlott France Entre Luxe et Tradition)

(Case T-169/06) (1)

(Community trade mark - Opposition proceedings - Application for figurative Community trade mark Charlott France Entre Luxe et Tradition - Earlier figurative national mark Charlot - Genuine use of the earlier mark - Article 43(2) and (3) of Regulation (EC) No 40/94)

(2007/C 315/72)

Language of the case: French

Parties

Applicant: Charlott SARL (Chaponost, France) (represented by: L. Conrad, T. Parisot and L. Tremeaud, lawyers)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, acting as Agent)

Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Charlo — Confecções para Homens, Artigos de Lã e Outros SA.

Re:

Action brought against the decision of the Second Board of Appeal of OHIM of 24 April 2006 (Case R 223/205-2) concerning opposition proceedings between Charlo — Confecções para Homens, Artigos de Lã e Outros SA and Charlott SARL.

Operative part of the judgment

The Court:

1.

Dismisses the action;

2.

Orders Charlott SARL to pay the costs, except those incurred by the intervener;

3.

Orders Charlo — Confecções para Homens, Artigos de Lã e Outros SA to bear its own costs.

(1)  OJ C 212, 2.9.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/39

Judgment of the Court of First Instance of 15 November 2007 — Hungary v Commission of the European Communities

(Case T-310/06) (1)

(Agriculture - Common organisation of the markets in cereals - Taking-over of cereals by intervention agencies - Upgrading of the criteria of the quality for maize - Introduction of a new criterion of specific weight for maize - Breach of the principle of protection of legitimate expectations - Manifest error of assessment)

(2007/C 315/73)

Language of the case: Hungarian

Parties

Applicant: Republic of Hungary (represented by: J. Fazekas, R. Somssich and K. Szíjjártó, Agents)

Defendant: Commission of the European Communities (represented by: F. Clotuche-Duvieusart and Z. Pataki, Agents)

Re:

Partial annulment of Commission Regulation (EC) No 1572/2006 of 18 October 2006 amending Regulation (EC) No 824/2000 establishing procedures for the taking-over of cereals by intervention agencies and laying down methods of analysis for determining the quality of cereals (OJ 2006 L 290, p. 29)

Operative part of the judgment

The Court:

1.

Annuls the provisions of Commission Regulation (EC) No 1572/2006 of 18 October 2006 amending Regulation (EC) No 824/2000 establishing procedures for the taking-over of cereals by intervention agencies and laying down methods of analysis for determining the quality of cereals relating to the criterion of specific weight for maize, viz:

—

in Article 1(1), the words ‘and, in the case of maize, with the traditional methods applied’;

—

in Article 1(3)(b), the words ‘73 kg/hl for maize’;

—

in line ‘E. Minimum specific weight (kg/hl)’ of the table in point 1 of the Annex, the value ‘71’ for maize;

—

in table III in point 2 of the Annex, the reduction values for the intervention price for maize.

2.

Orders the Commission to bear its own costs and to pay those incurred by the applicant, including the costs relating to the interlocutory proceedings.

(1)  OJ C 326, 30.12.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/39

Order of the Court of First Instance of 19 October 2007 — Evropaïki Dynamiki v EFSA

(Case T-69/05) (1)

(No need to adjudicate - Public procurement - European Food Safety Authority (EFSA) - Cancellation of the call for tenders - Action which has become devoid of purpose)

(2007/C 315/74)

Language of the case: English

Parties

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

Defendant: European Food Safety Authority (EFSA) (represented by: initially, A. Cuvillier and D. Detken, and subsequently by A. Cuvillier and S. Gabbi, Agents, and J. Stuyck, lawyer)

Re:

APPLICATION for annulment of the decision of the European Food Safety Authority (EFSA) of 3 December 2004 rejecting the tender submitted by the applicant in the tendering procedure concerning the supply of IT services for establishing an extranet between Member States' national agencies, the EFSA and the Commission, and also of the decision to award the contract to another tenderer

Operative part of the order

1.

There is no need to adjudicate on this case.

2.

The EFSA shall pay all the costs.

(1)  OJ C 106, 30.4.2005.

22.12.2007   

EN

Official Journal of the European Union

C 315/40

Order of the Court of First Instance of 17 October 2007 — Sumitomo Chemical Agro Europe and Philagro France v Commission

(Case T-454/05) (1)

(Plant protection products - Active substance procymidone - Directive 91/414/EEC - Action for annulment - Action for failure to act - No need to adjudicate - Action for damages - Inadmissibility - Action manifestly unfounded)

(2007/C 315/75)

Language of the case: English

Parties

Applicants: Sumitomo Chemical Agro Europe SAS (Lyon, France) and Philagro France SAS (Lyon) (represented by: K. Van Maldegem and C. Mereu, Lawyers)

Defendant: Commission of the European Communities (represented by: B. Doherty, agent)

Re:

Application for, first and primarily, annulment of the decision of the Commission allegedly contained in the letter of 20 October 2005 concerning authorisation to place the active substance procymidone on the market pursuant to Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230 p. 1); second, as an alternative to the claim for annulment, for a declaration that the Commission unlawfully failed to adopt the measures requested by Sumitomo Chemical Agro Europe SAS and its affiliates in a letter of 5 September 2005; and, third, for damages for the loss allegedly suffered by the applicants as a result of the Commission's adoption of the decision allegedly contained in the letter of 20 October 2005 and, in the alternative, as a result of the Commission's failure to adopt the measures requested in the letter of 5 September 2005.

Operative part of the order

1.

There is no longer any need to adjudicate on the actions for annulment and failure to act.

2.

The action for damages is dismissed as inadmissible in so far as it seeks compensation for the damage allegedly suffered by Sumitomo Chemical Agro Europe SAS and Philagro France SAS as a result of the adoption by the Commission of the decision allegedly contained in the letter of 20 October 2005.

3.

The action for damages is dismissed as manifestly without foundation in law in so far as it seeks compensation for the damage allegedly suffered by Sumitomo Chemical Agro Europe and Philagro France as a result of the failure by the Commission to adopt the measures requested by Sumitomo Chemical Agro Europe and its affiliates in the letter of 5 September 2005.

4.

Sumitomo Chemical Agro Europe and Philagro France are to bear their own costs and pay those incurred by the Commission.

(1)  OJ C 60, 11.3.2006.

22.12.2007   

EN

Official Journal of the European Union

C 315/40

Order of the Judge (Interim measures) of 18 October 2007 — Ristic and Others v Commission

(Case T-238/07 R) (1)

(Interim measures - Application for stay of execution - Directive 96/23/EC - Lack of urgency - Balance of interests)

(2007/C 315/76)

Language of the case: German

Parties

Applicants: Ristic AG (Burgthann, Germany); Piratic Meeresfrüchte Import GmbH (Burgthann); Prime Catch Seafood GmbH (Burgthann); and Rainbow Export Processing SA (Puntarenas, Costa Rica) (represented by: H. Schmidt, lawyer)

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

Re:

Application for stay of execution of Commission Decision 2007/362/EC of 16 May 2007 amending Decision 2004/432/EC on the approval of residue monitoring plans submitted by third countries in accordance with Council Directive 96/23/EC (OJ 2007 L 138, p. 18)

Operative part of the order

1.

The application is dismissed.

2.

The costs are reserved.

(1)  OJ C …

22.12.2007   

EN

Official Journal of the European Union

C 315/41

Action brought on 4 October 2007 — FIFA v Commission

(Case T-385/07)

(2007/C 315/77)

Language of the case: English

Parties

Applicant: Fédération Internationale de Football Association (FIFA) (represented by: R. Denton, E. Batchelor and F. Young, Solicitors)

Defendant: Commission of the European Communities

Form of order sought

—

The annulment of the decision, in particular Articles 1-2 thereof; and

—

an order that the Commission pay its own costs and FIFA's costs in connection with these proceedings.

Pleas in law and main arguments

Under Article 3a of Council Directive 89/552/EEC (1) a Member State may draw up a list of sporting or other events that are considered to be events of ‘major importance to society’. The events on the list cannot be the subject of exclusive broadcasting rights which prevent a substantial proportion of the public in that Member State from watching the event via live coverage or deferred coverage on free television.

The applicant seeks the annulment of Commission Decision 2007/479/EC of 25 June 2007 (2) by which the Commission declared that the list drawn up by Belgium pursuant to Article 3a(1) of Council Directive 89/552/EEC was compatible with Community law.

In support of its application the applicant submits that the Belgian list restricts the freedom to provide services by preventing the applicant from licensing foreign broadcasters with live exclusive FIFA World Cup broadcasting rights in respect of the Belgian market and that the listing of all FIFA World Cup matches, regardless of popularity, is not justified, proportionate or necessary.

Furthermore, the applicant alleges that the Belgian list restricts freedom of establishment by preventing the applicant from licensing new entrants who wish to use premium sports broadcasting to establish themselves on the Belgian market.

Moreover, the applicant contends that the Belgian list infringes the applicant's property rights by depriving it of exclusivity in respect of its broadcasting rights, recognised according to the applicant by EC law to be the essence of intellectual property protection.

Finally, the applicant argues that contrary to Article 3a(1) of Council Directive 89/552/EEC the Belgian list was not drawn up in a clear and transparent manner.

(1)  Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23).

(2)  Commission Decision 2007/479/EC of 25 June 2007 on the compatibility with Community law of measures taken by Belgium pursuant to Article 3a(1) of Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 2007 L 180, p. 24).

22.12.2007   

EN

Official Journal of the European Union

C 315/41

Action brought on 15 October 2007 — Alber v OHIM (part of hand grip)

(Case T-391/07)

(2007/C 315/78)

Language of the case: German

Parties

Applicant: Alfons Alber (Vöran, Italy) (represented by: S. Schneller, lawyer)

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

Form of order sought

—

annul the decision of the Board of Appeal of the Office for Harmonisation in the Internal Market of 16 August 2007 and the decision of the Office for Harmonisation in the Internal Market of 16 January 2007 in so far as those decisions reject registration of Community trade mark No 4 396 727 in respect of the goods ‘manually operated tools for agricultural, horticultural and forestry activities, including garden shears, tree pruning shears, hedge clippers; manually operated secateurs …’;

—

hold oral proceedings before the Court of First Instance;

—

order the defendant to pay the costs of the proceedings;

—

in the alternative, remit the case to the Office for Harmonisation in the Internal Market;

Pleas in law and main arguments

Community trade mark concerned: three-dimensional trade mark ‘Part of hand grip’ in respect of goods in Classes 6 and 8 (application No 4 396 727)

Decision of the Examiner: refusal in part of the application.

Decision of the Board of Appeal: dismissal of the appeal.

Pleas in law: Infringement of the principle laid down in the first sentence of Article 74(1) of Regulation No 40/94 (1) that the Office examines the facts of its own motion and infringement of Article 7 of that regulation. In the alternative, failure to the state reasons on which a decision is based pursuant to the first sentence of Article 73 of Regulation No 40/94.

(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

22.12.2007   

EN

Official Journal of the European Union

C 315/42

Action brought on 25 October 2007 — Algodonera del Sur v Council and Commission

(Case T-394/07)

(2007/C 315/79)

Language of the case: Spanish

Parties

Applicant: Algodonera del Sur, S.A. (Lebrija, Spain) (represented by: L. Ortiz Blanco, lawyer)

Defendant: Council of the European Union and Commission of the European Communities

Form of order sought

—

to uphold the present action for damages, in accordance with Article 288 EC, and declare the applicant is entitled to be financially compensated by the Council and the Commission jointly and severally in the sum total of one million twenty-nine thousand eight hundred and twenty-five euros (EUR 1 029 825); and

—

to order the defendant institutions to pay the costs.

Pleas in law and main arguments

The pleas in law and the main arguments are the same as those in Case T-217/07 Las Palmeras v Council and Commission.

22.12.2007   

EN

Official Journal of the European Union

C 315/42

Action brought on 30 October 2007 — France Télécom v OHIM (UNIQUE)

(Case T-396/07)

(2007/C 315/80)

Language in which the case was lodged: French

Parties

Applicant: France Télécom (Paris, France) (represented by B. Potot, lawyer)

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

Form of order sought

—

declare that the decision of the Second Board of Appeal of OHIM of 3 September 2007 is invalid;

—

order OHIM to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: Word mark UNIQUE for goods and services in Classes 9, 35 and 38 (application No 5 312 392)

Decision of the Examiner: Partial refusal of registration

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and Article 7(2) of Regulation No 40/94 of the Council (1) inasmuch as, in the applicant's view and contrary to what is stated in the contested decision, the word ‘UNIQUE’ is not devoid of any distinctive character.

(1)  Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

22.12.2007   

EN

Official Journal of the European Union

C 315/43

Action brought on 31 October 2007 — Basell Polyolefine v Commission

(Case T-399/07)

(2007/C 315/81)

Language of the case: German

Parties

Applicant: Basell Polyolefine GmbH (Wesselig, Germany) (represented by: D. Seeliger, E. Wagner and I. Liebach, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—

Annul the Commission Decision of 23 August 2007;

—

in the alternative, annul the Commission Decision of 23 August 2007 in so far as it also refuses partial access to documents;

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant challenges the Commission Decision of 23 August 2007, by which the Commission refuses its application for access to Commission documents concerning the decision in Case COMP/E-2/37.857 — Organic peroxides.

The applicant alleges, first of all, breach of Article 2(1) of Regulation (EC) No 1049/2001 (1). The applicant takes the view that, as a legal person with its seat in a Member State, it has a right to access to Commission documents and that this right under Article 2(3) of Regulation No 1049/2001 is also applicable to the documents requested in the context of a cartel investigation.

The applicant also alleges breach of the first and third indents of Article 4(2) of Regulation No 1049/2001, on the ground that no commercial interests that objectively warrant protection would be adversely affected by access to the documents and currently no investigation into the cartel proceedings in question is taking place. Furthermore, it is submitted in this connection that there is an overriding public interest in the disclosure of the documents applied for.

Furthermore the refusal of access to the documents applied for also infringes Article 255 EC. The decision is also in breach of Article 6(2) EU in conjunction with Article 42 of the EU Charter of Fundamental Rights.

The applicant also alleges breach of Article 4(6) in conjunction with Article 4(2) of Regulation No 1049/2001, on the ground that it at least has a right to partial access to the documents applied for. Finally, these provisions have also been breached on account of the Commission's failure to fulfil its duty to examine every document specifically and individually.

(1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

22.12.2007   

EN

Official Journal of the European Union

C 315/43

Action brought on 5 November 2007 — GretagMacbeth v OHIM (Coloured squares)

(Case T-400/07)

(2007/C 315/82)

Language of the case: German

Parties

Applicant: GretagMacbeth LLC (New Windsor, United States of America) (represented by: J. Weiser, lawyer)

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

Form of order sought

—

Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 30 August 2007 in Case R 30/2007-4 concerning Community trade mark application No 4 634 572;

—

Order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Community trade mark concerned: The colour mark ‘coloured squares’ in respect of goods and services in Classes 9, 16 and 42 (application No 4 634 572).

Decision of the Examiner: Rejection of the application.

Decision of the Board of Appeal: Dismissal of the appeal.

Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 40/94 (1), since the mark applied for was deemed incorrectly not to have any distinctive character in respect of the goods and services covered.

(1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).

22.12.2007   

EN

Official Journal of the European Union

C 315/44

Order of the Court of First Instance of 5 November 2007 — ITT Manufacturing Enterprises v OHIM — ITT Trademark & Trade (I.T.T.)

(Case T-231/07) (1)

(2007/C 315/83)

Language of the case: English

The President of the Fourth Chamber has ordered that the case be removed from the register.

(1)  OJ C 199, 25.8.2007.

22.12.2007   

EN

Official Journal of the European Union

C 315/44

Order of the Court of First Instance of 15 October 2007 — cApStAn v Commission

(Case T-287/07) (1)

(2007/C 315/84)

Language of the case: French

The President of the Third Chamber has ordered that the case be removed from the register.

(1)  OJ C 223, 22.9.2007.

22.12.2007   

EN

Official Journal of the European Union

C 315/44

Order of the Court of First Instance of 30 October 2007 — Simsalagrimm Filmproduktion v Commission and EACEA

(Case T-314/07 R)

(2007/C 315/85)

Language of the case: German

The President of the Court of First Instance has ordered that the case be removed from the register.

22.12.2007   

EN

Official Journal of the European Union

C 315/44

Order of the Court of First Instance of 30 October 2007 — France v Council

(Case T-382/07 R)

(2007/C 315/86)

Language of the case: French

The President of the Court of First Instance has ordered that the case be removed from the register.

European Union Civil Service Tribunal

22.12.2007   

EN

Official Journal of the European Union

C 315/45

Judgment of the Civil Service Tribunal (Second Chamber) of 8 November 2007 — Deffaa v Commission

(Case F-125/06) (1)

(Staff case - Officials - Reform of the Staff Regulations - Transfer - Post of Director-General - Grading - Article 7(1) of the Staff Regulations - Article 29(1) of the Staff Regulations - Second paragraph of Article 44 of the Staff Regulations - Article 45(1) of the Staff Regulations - Management premium)

(2007/C 315/87)

Language of the case: French

Parties

Applicant: Walter Deffaa (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

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

Re:

Annulment of the decision of the President of the Commission of 12 January 2006 promoting the applicant to the post of Director-General, in so far as it grades him in step 4 of Grade A*15, with effect from 1 August 2004.

Operative part of the judgment

The Tribunal:

1.

Dismisses the action;

2.

Orders the parties to pay their own costs.

(1)  OJ C 310, 16.12.2006, p. 32.

22.12.2007   

EN

Official Journal of the European Union

C 315/45

Action brought on 5 October 2007 — Duta v Court of Justice

(Case F-103/07)

(2007/C 315/88)

Language of the case: French

Parties

Applicant: Radu Duta (Luxembourg, Luxembourg) (represented by: F. Krieg, lawyer)

Defendant: Court of Justice of the European Communities

Form of order sought

—

annul the contested decisions;

—

refer the case back to the competent authority;

—

order the defendant to pay the costs.

Pleas in law and main arguments

By his action, the applicant challenges the rejection of his candidature for a post of Legal Secretary to a judge of the Court of First Instance of the European Communities. The rejection took place by circular letter of 24 January 2007, although the judge in question had previously shown a lively interest in the applicant's candidature.

The applicant pleads, first, the nullity of the decision to reject his complaint. It was dealt with by the ‘Committee of the Court of First Instance with power to determine complaints’ the composition of which does not meet the requirements for a fair hearing as defined by Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The members of the Court of First Instance sitting as that committee cannot determine with complete impartiality cases concerning one of their colleagues.

Secondly, the applicant pleads that he was the victim of discrimination. The judge in question did not exercise his or her discretion reasonably.

Finally, the applicant submits that, in any event, the contested decisions infringe the general principles of transparency, good faith and the protection of legitimate expectations.

22.12.2007   

EN

Official Journal of the European Union

C 315/46

Action brought on 8 October 2007 — Daskalakis v Commission

(Case F-107/07)

(2007/C 315/89)

Language of the case: English

Parties

Applicant: Constantin Daskalakis (Brussels, Belgium) (represented by: S. A. Pappas, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Tribunal should:

—

Annul the decision of the Appointing Authority dated 28 June 2007 to the extent that it does not award the management premium provided for in Article 7(2) of the Staff Regulations for a period longer than one year;

—

Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, an official called upon to occupy temporarily a post of Head of Unit, appeals the decision by which the Commission, when calculating his salary, refused to take into account the premium that he was granted as Head of Unit ad interim, on the ground that, according to Article 7(2) of the Staff Regulations, this premium could be allowed only for one year, even if the Applicant was still acting as Head of Unit after that period had expired.

The Applicant claims that the time-limit provided for in the abovementioned provision refers only to the duration of the temporary posting and does not affect the remuneration corresponding to it, if the temporary posting is prolonged beyond the duration of one year. According to the Applicant, if the Administration is not able to fill the vacancy in one year, it cannot invoke its own failure against the officer occupying the post ad interim for a longer period.

The applicant alleges, in addition, infringement of the duty to have regard for the welfare of the officials and of the principle of good administration. The Commission should have taken into consideration not only the interests of the service but also those of the official concerned.

In a subsidiary manner, the Applicant stresses that he was nominated Head of Unit ad interim because the compulsory mobility plan obliged the holder of the post in question to switch to another post. For this reason, he alleges that its case should be covered by the last part of Article 7(2) of the Staff Regulations, according to which the duration of a temporary posting can exceed one year, where, directly or indirectly, the posting is to replace an official who is seconded to another post in the interests of the service.

22.12.2007   

EN

Official Journal of the European Union

C 315/46

Action brought on 16 October 2007 — Doumas v Commission

(Case F-112/07)

(2007/C 315/90)

Language of the case: French

Parties

Applicant: Georgios Doumas (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

The applicant claims that the Tribunal should:

—

annul the decision rejecting the applicant's request of 24 November 2006;

—

order the European Commission to pay the applicant the remuneration which he would have received from 1 November 2003 until 16 September 2007, the date of his effective reinstatement, as compensation for his material damage;

—

order the Commission to pay the applicant EUR 200 000, subject to increase or diminution in the course of the proceedings, for the damage which he is suffering in terms of delay in his career and for loss of the chance of making progress in his career (promotion, step, pension …), and, in respect of non-material damage, particularly the damage to his state of health, because of the state of uncertainty as to the progress of his career for more than three years as a result of the Appointing Authority's (‘the AIPN’) wrongful acts or omissions;

—

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, an official in step 3 of Grade A5, by e-mail of 1 August 2003, three months before the end of his leave on personal grounds (‘CCP’), taken from 1 October 2002 until 31 October 2003, stated his wish not to apply for an extension to his CCP. On 24 November 2006, he requested the AIPN, first, to reinstate him in the first vacant post corresponding to his grade and, second, compensation for the loss which he was suffering because of his non-reinstatement as a result of the Commission's wrongful acts or omissions, such reinstatement in the function group of administrator being possible only from 16 September 2007.

In support of his action, the applicant pleads, among other things, breach of Article 40 of the Staff Regulations, of Article 4 et seq. of the Commission's decision of 5 September 1988, which applied to the end of his CCP, and of Article 8 of the Commission's new decision of 28 April 2004 on CCP which entered into force on 1 May 2004.

The applicant pleads, in addition, that the Commission's decision not to reinstate him is vitiated by a total failure to state reasons.

The applicant claims, in particular, that the repetition of those wrongful acts or omissions which are causing him significant damage constitutes psychological harassment within the meaning of Article 12a of the Staff Regulations.

The applicant submits finally that the Commission has infringed Article 40(4) of the Staff Regulations and the principle of sound administration.

22.12.2007   

EN

Official Journal of the European Union

C 315/47

Action brought on 19 October 2007 — Wenning v Europol

(Case F-114/07)

(2007/C 315/91)

Language of the case: English

Parties

Applicant: Rainer Wenning (The Hague, Netherlands (represented by: G. Vandersanden, C. Ronzi, lawyers)

Defendant: Europol

Form of order sought

The applicant claims that the Tribunal should:

—

annul the decision of the Europol's Director of 21 December 2006 not to prolong the appellant's contract and his reintegration at Europol as from 1 October 2007;

—

as consequence, the annulment of the Staff Development and Review Form on which the impugned decision is based;

—

the award of compensation for the material and moral prejudice suffered;

—

order the defendant to pay all the costs.

Pleas in law and main arguments

The decision not to prolong the appellant's contract violates the duty of motivation, as it does not contain itself the reasons justifying it. It based on an invalid Staff Development and Review Form.

The appellant's Staff Report has been drafted in violation of Europol rules on the staff Development and Review Process (Article 28 of Europol Staff Rules and Staff Development and Review Process Guidelines) and it contains many errors of appraisal having led to an error in law.

The assessment process has been used by the appellant's superiors with the aim to dismiss him, instead than for evaluating him. This constitutes also misuse and abuse of powers.

The only objective pursued the appellant's superiors was to do not renew his contract, notwithstanding his good performance and the fact that he had been assured he would get a better score than the previous year if his improvements continued. The appellant's had legitimate expectations that his contract would be converted into an indefinite duration one or at least prolonged.

The impugned decision and the context in which it was delivered are also not in compliance with the principle of proper administration and duty of care, which every administration must show in respect of its staff members.

It would have been in conformity with both the interest of the service and of the staff member to keep the appellant at Europol. As a matter of fact, the work the appellant was in charge of will continue to be performed. The appellant has continuously showed during the years that he could perform it well, to the satisfaction of his colleagues and also people external to Europol.

The appellant has also been discriminated in comparison with other colleagues which performed the same way he did and obtained a prolongation of their contract.

Eventually, the appellant asks compensation for the material and moral prejudice that the impugned decision has caused to him.

22.12.2007   

EN

Official Journal of the European Union

C 315/48

Action brought on 22 October 2007 — Balieu-Steinmetz and Noworyta v Parliament

(Case F-115/07)

(2007/C 315/92)

Language of the case: French

Parties

Applicants: Marie-Thérèse Balieu-Steinmetz (Sanem, Luxembourg) and Lidia Noworyta (Brussels, Belguim) (represented by: S. Orlandi, A. Coolen, J.-N.Louis and E. Marchal, lawyers)

Defendant: European Parliament

Form of order sought

The applicants claim that the Tribunal should:

—

declare illegal the first article of the internal rules adopted by the Appointing Authority ('the AIPN') concerning the fixed allowance for overtime referred to in Article 3 of Annex VI to the Staff Regulations, which entered into force on 1 May 2004, in so far as it establishes a requirement of regularity of the overtime;

—

annul the AIPN's express decision of 18 December 2006 rejecting Ms Noworyta's request of 6 July 2006 and the implied decision of 30 November 2006 rejecting Ms Balieu-Steinmetz's request of 13 July 2006;

—

order the defendant to pay the costs.

Pleas in law and main arguments

In support of their action, the applicants plead, first, infringement of fundamental rights, general principles and the European Social Charter, according to which every worker must be subject to fair conditions of employment, particularly in terms of working time and payment or compensation for overtime worked or because of the particular circumstances of the management of their working hours.

In particular, they claim that unlike Articles 56a and 56b of the Staff Regulations, Article 3 of Annex VI to the Staff Regulations does not make the possibility of paying a fixed allowance for overtime worked in special conditions subject to a requirement that the overtime be worked on a regular basis. In the applicants' submission, the AIPN fell into error of law by adding that requirement in the internal rules relating to compensation for overtime.

The AIPN also made a manifest error of law by stating that officials recruited on or after 1 May 2004 cannot be entitled to such an allowance whereas that possibility is expressly referred to in Article 1 of those internal rules.

In addition, the applicants maintain that the decision to refuse them any compensation or remuneration for those special working conditions infringes Articles 56a and 56b of the Staff Regulations and the principle of equal treatment.

Finally, in the applicants' submission, the Parliament's position is not coherent since the Director-General of the Directorate-General of the Presidency has stated that no-one in standard telephone works overtime on a regular basis whereas the AIPN concluded, for its part, that a study was in progress to examine the possibilities of harmonising the working conditions in the service in question because, precisely, of the atypical hours worked, outside the general/usual working hours.

22.12.2007   

EN

Official Journal of the European Union

C 315/48

Action brought on 25 October 2007 — Kolountzios v Commission

(Case F-117/07)

(2007/C 315/93)

Language of the case: French

Parties

Applicant: Kolountzios (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

The applicant claims that the Tribunal should:

—

annul the Commission's decision of 11 May 2007 rejecting the applicant's request for the calculation of his entitlement to pension rights acquired, before his entry into service, in drachmas with the Greek pension bodies TMSEDE and ELPP by applying the updated average rate of exchange fixed by the Commission to take account of the drachma's fluctuations during the period of contribution;

—

order the defendant to pay the costs.

Pleas in law and main arguments

In support of his action, the applicant, an official in step 4 of Grade AD 12, invokes three pleas in law, the first of which alleges the illegality of the General Provisions for Implementing Article 11(2) of Annex VIII to the Staff Regulations (and more particularly of Article 7(3)), and, if need be, the illegality of that provision of those regulations.

The second plea in law alleges breach of Article 3 of Council Regulation (EC) No 1103/97 of 17 June 1997 on certain provisions relating to the introduction of the euro (OJ 1997 L 162, p. 1).

The third plea in law alleges breach of the principles of legal certainty, equal treatment and non-discrimination.

22.12.2007   

EN

Official Journal of the European Union

C 315/49

Action brought on 22 October 2007 — Strack v Commission

(Case F-118/07)

(2007/C 315/94)

Language of the case: German

Parties

Applicant: Guido Strack (Cologne, Germany) (represented by: H. Tettenborn, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Tribunal should

—

Order the defendant to pay the applicant damages in the amount of EUR 1 000, for non-material damage, including damage to his health, in the period from 8 September 2006 to 7 October 2006 caused to him by the fact that, until the latter date, the Commission had failed to adopt a lawful decision on his application of 7 March 2005 for a finding that his illness was occupational in nature and annul to that extent the Commission's decisions to the contrary of 12 January 2007, 26 February 2007 and 20 July 2007;

—

Order the defendant to pay the applicant damages in the amount of at least EUR 10 000 for material damage and non-material damage, including damage to his health which the applicant suffered between 1 November 2006 and 31 December 2006 as a result of unlawful conduct on the part of the Commission and annul to that extent the Commission's decisions to the contrary of 12 January 2007, 26 February 2007 and 20 July 2007;

—

Order the defendant to pay interest for delayed payment on the amounts due under the above heads of claim, for the period from 26 February 2007 to the date on which payment is actually made, at a rate of 2 % per year above the main refinancing operations rate fixed by the European Central Bank for the period in question;

—

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

Pleas in law and main arguments

In support of his claim for damages, the applicant relies on the fact that the Commission and the European Anti-Fraud Office (OLAF) committed a large number of administrative errors and unlawful acts in regard to him in the years from 2000 to 2006. That relates, in particular, to his work environment and mobbing in the workplace, the treatment of his whistle-blowing, the way in which the procedures for assessments and promotions were carried out, the unlawful communication of his personal data, obstruction of his attempts to obtain an explanation for, and proof of, those infringements of the law and the circumstances surrounding the unlawful and delayed processing of his applications under Articles 73 and 78 of the Staff Regulations of Officials of the European Communities (Staff Regulations)

The applicant claims that the defendant thereby infringed the rules concerning the protection of health, Article 255 EC, Articles 1, 3, 8 and Article 41 et seq of the Charter of Fundamental Rights, Articles 8 and 13 of the European Convention on Human Rights, Regulations Nos 1049/2001 and 45/2001, Articles 11a, 12, 22a, 22b, 24, 25, 26, 26a, 43, 45, 73 and 78 of the Staff Regulations, the legal instruments on the basis of which OLAF was set up and, in particular, the duty of care and the prohibition of arbitrary action.

The defendant thereby caused the alleged material and non-material damage, since, as the defendant has accepted in the interim in the context of the procedure under Articles 73 and 78 of the Staff Regulations, the applicant became ill as a result of those administrative errors and was ultimately invalided. The unlawful and delayed execution of the abovementioned procedure caused him additional non-material damage.

22.12.2007   

EN

Official Journal of the European Union

C 315/50

Action brought on 22 October 2007 — Strack v Commission

(Case F-120/07)

(2007/C 315/95)

Language of the case: German

Parties

Applicant: Guido Strack (Cologne, Germany) (represented by: H. Tettenborn, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Tribunal should:

—

Annul the decisions of the European Commission of 30 May 2005, 25 October 2005, 15 March 2007 and 20 July 2007 to the extent that they limit to 12 the number of days of unused annual leave for 2004 which the applicant was allowed to carry over to the following year and to limit accordingly the compensation for unused leave paid to the applicant at the time that he left the service;

—

Order the European Commission to pay the applicant financial compensation for 26,5 days unused leave in respect of which no compensation has been paid in accordance with the second paragraph of Article 4 of Annex V to the Staff Regulations, plus interest, from 1 April 2005, at a rate of 2 % per year above the main refinancing operations rate fixed by the European Central Bank for the period in question;

—

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

Pleas in law and main arguments

In support of his application, the applicant invokes an infringement of the first and second paragraphs of Article 4 of Annex V to the Staff Regulations and of the defendant's Administrative Notice No 66-2002. According to those provisions, he was entitled to carry over in its entirety to 2005 that part of his annual leave for 2004 which, by reason of the requirements of the service, he had been unable to use up before the end of the calendar year 2004, something which the defendant's contested decision refused him permission to do. He was unable to use up his leave due to the illness which the defendant has in the interim accepted is occupational in nature.

The applicant also claims that it can be seen from the accessory claim for damages that the defendant unlawfully refused to pay the compensation due to the applicant in accordance with the second paragraph of Article 4 of Annex V to the Staff Regulations at the time that the applicant left the active service.

22.12.2007   

EN

Official Journal of the European Union

C 315/50

Action brought on 22 October 2007 — Strack v Commission

(Case F-121/07)

(2007/C 315/96)

Language of the case: German

Parties

Applicant: Guido Strack (Cologne, Germany) (represented by: H. Tettenborn, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Tribunal should:

—

Annul the decisions of the European Commission of 12 January 2007, 26 February 2007 and 20 July 2007 to the extent that they deny the applicant immediate and comprehensive access to all data and documents in the defendant's possession concerning him. That means, at the present moment and in their current versions, transmission of complete, preferably electronic, copies of the following documents, or, in the alternative, an unrestricted right to examine the abovementioned data and documents and to make copies thereof and notes thereon:

—

his official personal file, in accordance with the requirements of Article 26 of the Staff Regulations, and all additional parallel files — including electronic ones (for example, Sysper 2);

—

all documents relating to the procedure and decisions concerning the assessments made of him and his promotions since 1 January 2002;

—

the OLAF files in Case OF/2002/0356;

—

the files in the proceedings concerning his application of 7 March 2005;

—

the report drawn up by the Investigation and Disciplinary Office (IDOC) in those proceedings, the IDOC files on which that report was based and all other documents in the possession of IDOC which concern or refer to the complainant;

—

his medical file, which the Commission must provide in readable form;

—

all other medical documents, reports and other similar material held by the Commission;

—

all other files, documents and correspondence in the Commission's possession relating to the facts set out in this case and/or individual procedures, that is to say, including the procedure in the complaints brought before the Ombudsman and the European Data Protection Supervisor (EDPS);

—

Order the European Commission to pay the applicant an appropriate amount by way of damages, at least EUR 10 000, for non-material damage and damage to his health caused to him by the decisions the annulment of which is sought in these proceedings, plus interest, from the time at which the action was brought, at a rate of 2 % per year above the main refinancing operations rate fixed by the European Central Bank for the period in question;

—

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

Pleas in law and main arguments

In support of his application, the applicant invokes a breach of the duty of care towards officials, a breach of the principle of sound administration, a misuse of the power of assessment or an error in the exercise thereof in the contested decisions. In addition, the decisions also infringe the second sentence of the second paragraph of Article 25, the seventh paragraph of Article 26 and Article 26a of the Staff Regulations and infringe the applicant's rights under Article 255 EC, Regulation No 1049/2001 and the fundamental right to self-determination in regard to information, taken together with Regulation No 45/2001.