30.4.2004

Official Journal of the European Union

C 106/1

JUDGMENT OF THE COURT

(Sixth Chamber)

of 25 March 2004

in Joined Cases C-231/00. C-303/00 and C-451/00 referred for a preliminary ruling by the Tribunale amministrativo regionale del Lazio (Italy) Cooperativa Lattepiù arl and Azienda di Stato per gli interventi nel mercato agricolo (AIMA), Azienda Agricola Marcello Balestreri e Maura Lena and Regione Lombardia, Azienda di Stato per gli interventi nel mercato agricolo (AIMA) and between Azienda Agricola Giuseppe Cantarello and Azienda di Stato per gli interventi nel mercato agricolo (AIMA), Ministero delle Politiche Agricole e Forestali (1)

(Agriculture - Common organisation of the markets - Milk and milk products - Additional levy on milk - Regulations (EEC) Nos 3950/92 and 536/93 - Reference quantities - Ex post correction - Notification of producers)

(2004/C 106/01)

Language of the case: Italian

In Joined Cases C-231/00, C-303/00 and C-451/00, reference to the Court under Article 234 EC by the Tribunale amministrativo regionale del Lazio (Italy) for a preliminary ruling in the proceedings pending before that court between Cooperativa Lattepiù arl and Azienda di Stato per gli interventi nel mercato agricolo (AIMA) (C-231/00), between Azienda Agricola Marcello Balestreri e Maura Lena and Regione Lombardia, Azienda di Stato per gli interventi nel mercato agricolo (AIMA) (C-303/00), and between Azienda Agricola Giuseppe Cantarello and Azienda di Stato per gli interventi nel mercato agricolo (AIMA), Ministero delle Politiche Agricole e Forestali (C-451/00), – on the interpretation and validity of Articles 1, 4, 6 and 7 of Council Regulation (EEC) No 3950/92 of 28 December 1992 establishing an additional levy in the milk and milk products sector (OJ 1992 L 405, p. 1), and of Articles 3 and 4 of Commission Regulation (EEC) No 536/93 of 9 March 1993 laying down detailed rules for the application of the additional levy on milk and milk products (OJ 1993 L 57, p. 12) – the Court (Sixth Chamber) composed of: V. Skouris (Rapporteur), acting for the President of the Sixth Chamber, C. Gulmann and J.-P. Puissochet, F. Macken and N. Colneric, Judges, P. Léger, Advocate General, L. Hewlett and H.A. Rühl, Principal Administrators for the Registrar, have given a judgment on 25 March 2004, in which

On a proper construction of Articles 1, 4, 6 and 7 of Council Regulation (EEC) No 3950/92 of 28 December 1992 establishing an additional levy in the milk and milk products sector and of Articles 3 and 4 of Commission Regulation (EEC) No 536/93 laying down detailed rules on the application of the additional levy on milk and milk products, it is not contrary to those provisions for a Member State, after checks have been carried out, to correct the individual reference quantities allocated to each producer and, after the unused reference quantities have been reallocated, to recalculate in consequence the additional levies payable, after the final date for payment of those levies for the milk marketing year concerned

(1) OJC 247, 26.8.2000.

OJC 302, 21.10.2000.

OJC 61, 24.2.2001.

30.4.2004

Official Journal of the European Union

C 106/2

JUDGMENT OF THE COURT

(Sixth Chamber)

of 25 March 2004

in Joined Cases C-480/00 to 482/00, C-484/00, C-489/00 to C-491/00 and C-497/00 to C-499/00 (reference for a preliminary ruling from the Tribunale amministrativo regionale del Lazio): Azienda Agricola Ettore Ribaldi v Azienda di Stato per gli interventi nel mercato agricolo (AIMA), Ministero del Tesoro, del Bilancio e della Programmazione Economica and Others (1)

(2004/C 106/02)

Language of the case: Italian

In Joined Cases C-480/00 to 482/00, C-484/00, C-489/00 to C-491/00 and C-497/00 to C-499/00 – reference to the Court under Article 234 EC by the Tribunale amministrativo regionale del Lazio (Italy) for a preliminary ruling in the proceedings pending before that court between Azienda Agricola Ettore Ribaldi and Azienda di Stato per gli interventi nel mercato agricolo (AIMA), Ministero del Tesoro, del Bilancio e della Programmazione Economica, intervener: Caseificio Nazionale Novarese Soc. coop. arl (C-480/00), between Domenico Buttiglione and Others and Azienda di Stato per gli interventi nel mercato agricolo (AIMA), Ministero delle Politiche Agricole e Forestali (C-481/00), between Azienda Agricola Ettore Raffa and Others and Azienda di Stato per gli interventi nel mercato agricolo (AIMA), Ministero del Tesoro, del Bilancio e della Programmazione Economica (C-482/00), between Carlo Balestreri and Azienda di Stato per gli interventi nel mercato agricolo (AIMA), Ministero del Tesoro, del Bilancio e della Programmazione Economica, intervener: Parmalat SpA (C-484/00) between Azienda Agricola 'Corte delle Piacentine' and Others and Azienda di Stato per gli interventi nel mercato agricolo (AIMA) (C-489/00), between Cesare e Michele Filippi ss and Azienda di Stato per gli interventi nel mercato agricolo (AIMA), Ministero del Tesoro, del Bilancio e della Programmazione Economica (C-490/00), between Cooperativa Produttori Latte Associati della Lessinia arl and Azienda di Stato per gli interventi nel mercato agricolo (AIMA), Ministero del Tesoro, del Bilancio e della Programmazione Economica (C-491/00), between Azienda Agricola Simone e Stefano Gonal di Gonzato and Azienda di Stato per gli interventi nel mercato agricolo (AIMA), Ministero del Tesoro, del Bilancio e della Programmazione Economica (C-497/00), between Azienda Agricola Gianluigi Cerati e Maria Ceriali ss and Azienda di Stato per gli interventi nel mercato agricolo (AIMA), Ministero del Tesoro, del Bilancio e della Programmazione Economica (C-498/00), and between Nicolò Musini, acting for l'Azienda Agricola Tenuta di Fassia, and Azienda di Stato per gli interventi nel mercato agricolo (AIMA), Ministero del Tesoro, del Bilancio e della Programmazione Economica, intervener: Cooperativa Produttori Latte Soc. coop. arl (C-499/00), on the interpretation and validity of Articles 1, 2 and 4 of Council Regulation (EEC) No 3950/92 of 28 December 1992 establishing an additional levy in the milk and milk products sector (OJ 1992 L 405, p. 1), and of Articles 3 and 4 of Commission Regulation (EEC) No 536/93 of 9 March 1993 laying down detailed rules on the application of the additional levy on milk and milk products (OJ 1993 L 57, p. 12), the Court (Sixth Chamber) – composed of: V. Skouris (Rapporteur), acting for the President of the Sixth Chamber, C. Gulmann, J.-P. Puissochet, F. Macken and N. Colneric, Judges, P. Léger, Advocate General, L. Hewlett and H.A. Rühl, Principal Administrators, for the Registrar, has given judgment on 25 March 2004, in which it:

On a proper construction of Articles 1 and 4 of Council Regulation (EEC) No 3950/92 of 28 December 1992 establishing an additional levy in the milk and milk products sector, and Articles 3 and 4 of Commission Regulation (EEC) No 536/93 of 9 March 1993 laying down detailed rules on the application of the additional levy on milk and milk products, it is not contrary to those provisions for a Member State, after checks have been carried out, to correct the individual reference quantities allocated to each producer and, after the unused reference quantities have been reallocated, to recalculate in consequence the additional levies payable, after the final date for payment of those levies for the production period concerned.

Regulations Nos 3950/92 and 536/92 are to be interpreted as requiring that the original allocation of individual reference quantities and any later alteration to them should be notified to the producers concerned by the competent national authorities.

The principle of legal certainty demands that that communication should be of such a nature as to give the natural or legal persons concerned all information relating to the original allocation of their individual reference quantity or later alteration to it. It is for the national court to determine, on the basis of the facts before it, whether that is so in the cases in the main proceedings.

(1) OJ C 108 of 7.4.2001.

OJ C 118 of 21.4.2001.

OJ C 134 of 30.5.2001.

30.4.2004

Official Journal of the European Union

C 106/3

JUDGMENT OF THE COURT

(Sixth Chamber)

of 25 March 2004

in Case C-495/00 (reference for a preliminary ruling from the Tribunale amministrativo regionale del Lazio): Azienda Agricola Giorgio, Giovanni e Luciano Visentin and Others v Azienda di Stato per gli interventi nel mercato agricolo (AIMA) (1)

(Agriculture - Common organisation of the markets - Milk and milk products - Additional levy on milk - Regulations (EEC) Nos 3590/92 and 536/93 - Reference quantities - Ex post correction)

(2004/C 106/03)

Language of the case:Italian

In Case C-495/00: REFERENCE to the Court under Article 234 EC from the Tribunale amministrativo regionale del Lazio (Italy) for a preliminary ruling in the proceedings pending before that court between Azienda Agricola Giorgio, Giovanni e Luciano Visentin and Others and Azienda di Stato per gli interventi nel mercato agricolo (AIMA),interveners: Caseificio Silvio Belladelli e Figli, Granlatte cons. coop., Medighini Ind. Cas, Parmalat SpA and Zanetti SpA Ä on the interpretation and validity of Articles 1 and 4 of Council Regulation (EEC) No 3950/92 of 28 December 1992 establishing an additional levy in the milk and milk products sector (OJ 1992 L 405, p. 1), and of Articles 3 and 4 of Commission Regulation (EEC) No 536/93 laying down detailed rules for the application of the additional levy on milk and milk products (OJ 1993 L 57, p. 12) Ä the Court (Sixth Chamber), composed of: V. Skouris (Rapporteur), acting for the President of the Sixth Chamber, C. Gulmann, J.-P. Puissochet, F. Macken and N. Colneric, Judges; P. Léger, Advocate General; L. Hewlett and H.A. Rühl, Principal Administrators, for the Registrar, has given a judgment on 25 March 2004, in which it has ruled:

On a proper construction of Articles 1 and 4 of Council Regulation (EEC) No 3950/92 of 28 December 1992 establishing an additional levy in the milk and milk products sector, and of Articles 3 and 4 of Commission Regulation (EEC) No 536/93 laying down detailed rules for the application of the additional levy on milk and milk products, it is not contrary to those provisions for a Member State, after checks have been carried out, to correct the individual reference quantities allocated to each producer and, after the unused reference quantities have been reallocated, to recalculate in consequence the additional levies payable, after the final date for payment of those levies for the milk marketing year concerned.

(1) OJ C 118 of 21.4.2001.

30.4.2004

Official Journal of the European Union

C 106/3

JUDGMENT OF THE COURT

(Sixth Chamber)

18 March 2004

In Case C-314/01 (Reference for a preliminary ruling from the Bundesvergabeamt): Siemens AG Österreich, ARGE Telekom & Partner v Hauptverband der österreichischen Sozialversicherungsträger (1)

(Public contracts - Directive 89/665/EEC - Review procedures concerning the award of public contracts - Effects of a decision by the body responsible for review procedures annulling the decision by the contracting authority not to revoke the procedure by which a contract was awarded - Restriction on the use of subcontracting)

(2004/C 106/04)

Language of the case: German

In Case C-314/01: References to the Court under Article 234 EC by the Bundesvergabeamt (Austria) for a preliminary ruling in the proceedings pending before that court between Siemens AG Österreich, ARGE Telekom & Partner and Hauptverband der österreichischen Sozialversicherungsträger; Joined party: Bietergemeinschaft EDS/ORGA, on the interpretation of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), as amended by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1), the Court (Sixth Chamber), composed of: V. Skouris, acting for the President of the Sixth Chamber, C. Gulmann, J.-P. Puissochet, R. Schintgen (Rapporteur) and N. Colneric, Judges; L.A. Geelhoed, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 18 March 2004, in which it has ruled:

Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, and in particular Articles 1(1) and 2(7) thereof, must be construed as meaning that, in the case where a clause in an invitation to tender is incompatible with Community rules on public contracts, the national legal systems of the Member States must provide for the possibility of relying on that incompatibility in the review procedures referred to in Directive 89/665.

(1) OJ C 317 of 10.11.2001.

30.4.2004

Official Journal of the European Union

C 106/4

JUDGMENT OF THE COURT

(Sixth Chamber)

18 March 2004

In Case C-342/01 (Reference for a preliminary ruling from the Juzgado de lo Social No 33 de Madrid): María Paz Merino Gómez v Continental Industrias del Caucho SA (1)

(Social policy - Equal treatment for men and women - Maternity leave - Worker whose period of maternity leave coincides with the period of annual leave for all staff agreed in a collective agreement on annual leave)

(2004/C 106/05)

Language of the case: Spanish

In Case C-342/01: References to the Court under Article 234 EC by the Juzgado de lo Social No 33 de Madrid (Spain) for a preliminary ruling in the proceedings pending before that court between María Paz Merino Gómez and Continental Industrias del Caucho SA, on the interpretation of Article 7(1) of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18), of Article 11(2)(a) of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1) and of Article 5(1) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40), the Court (Sixth Chamber), composed of: J.N. Cunha Rodrigues, acting for the President of the Sixth Chamber, J.-P. Puissochet, R. Schintgen, F. Macken and N. Colneric (Rapporteur), Judges; J. Mischo, Advocate General; R. Grass, Registrar, has given a judgment on 18 March 2004, in which it has ruled:

Article 7(1) of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time, of Article 11(2)(a) of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) and of Article 5(1) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions are to be interpreted as meaning that a worker must be able to take her annual leave during a period other than the period of her maternity leave, including in a case in which the period of maternity leave coincides with the general period of annual leave fixed, by a collective agreement, for the entire workforce.

2.	Article 11(2)(a) of Directive 92/85 is to be interpreted as also applying to the entitlement of a worker in circumstances such as those of the case before the referring court to a longer period of annual leave, provided for by national law, than the minimum laid down by Directive 93/104.

(1) OJ C 317 of 10.11.2001.

30.4.2004

Official Journal of the European Union

C 106/5

JUDGMENT OF THE COURT

(Sixth Chamber)

of 1 April 2004

in Case C-1/02 (reference for a preliminary ruling from the Finanzgericht Düsseldorf): Privat-Molkerei Borgmann GmbH & Co. KG v Hauptzollamt Dortmund (1)

(Agriculture - Additional milk levy - Article 3(2) of Regulation (EEC) No 536/93 - Annual statement of quantities of milk delivered to the purchaser - Time-limit for notification - Nature of time-limit - Penalties)

(2004/C 106/06)

Language of the case: German

In Case C-1/02: reference to the Court under Article 234 EC by the Finanzgericht Düsseldorf (Germany) for a preliminary ruling in the proceedings pending before that court between Privat-Molkerei Borgmann GmbH & Co. KG and Hauptzollamt Dortmund, on the validity of the second subparagraph of Article 3(2) of Commission Regulation (EEC) No 536/93 of 9 March 1993 laying down detailed rules on the application of the additional levy on milk and milk products (OJ 1993 L 57, p. 12), as amended by Commission Regulation (EC) No 1001/98 of 13 May 1998 (OJ 1998 L 142, p. 22), the Court (Sixth Chamber), V. Skouris, acting for the President of the Sixth Chamber, C. Gulmann, J.-P. Puissochet, R. Schintgen and N. Colneric (Rapporteur), Judges, A. Tizzano, Advocate General, H. Von Holstein, Deputy Registrar, gave a judgment on 1 April 2004, the operative part of which is as follows:

Article 3(2) of Commission Regulation (EEC) No 536/93 of 9 March 1993 laying down detailed rules on the application of the additional levy on milk and milk products, as amended by Commission Regulation (EC) No 1001/98 of 13 May 1998, must be interpreted as meaning that milk purchasers comply with the time-limit laid down in that provision where they send the requisite information to the competent authority before 15 May of the relevant year.

(1) OJ C 56 of 2.3.3002

30.4.2004

Official Journal of the European Union

C 106/5

JUDGMENT OF THE COURT

(Fifth Chamber)

18 March 2004

In Case C-8/02 (Reference for a preliminary ruling from the Verwaltungsgericht Sigmaringen): Ludwig Leichtle v Bundesanstalt für Arbeit (1)

(Freedom to provide services - Sickness insurance scheme for civil servants - Health cure taken in another Member State - Expenditure on board, lodging, travel, visitors tax and a final medical report - Conditions for reimbursement - Prior declaration of eligibility for assistance - Criteria - Justification)

(2004/C 106/07)

Language of the case: German

In Case C-8/02: References to the Court under Article 234 EC by the Verwaltungsgericht Sigmaringen (Germany) for a preliminary ruling in the proceedings pending before that court between Ludwig Leichtle and Bundesanstalt für Arbeit, on the interpretation of Articles 49 EC and 50 EC, the Court (Fifth Chamber), composed of: C.W.A. Timmermans, acting for the President of the Fifth Chamber, A. La Pergola (Rapporteur) and S. von Bahr, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, has given a judgment on 18 March 2004, in which it has ruled:

Articles 49 EC and 50 EC are to be interpreted as meaning that they preclude rules of a Member State, such as those at issue in the main proceedings, under which reimbursement of expenditure incurred on board, lodging, travel, visitors tax and the making of a final medical report in connection with a health cure taken in another Member State is conditional on obtaining prior recognition of eligibility, which is given only provided it is established, in a report drawn up by a medical officer or a medical consultant, that the proposed cure is absolutely necessary owing to the greatly increased prospects of success in that other Member State.

Articles 49 EC and 50 EC are to be interpreted as meaning that they do not in principle preclude rules of a Member State, such as those at issue in the main proceedings, under which expenditure incurred on board, lodging, travel, visitors tax and the making of a final medical report in connection with a health cure, whether taken in that Member State or in another Member State, is made only where the health spa concerned is listed in the Register of Health Spas. However, it is for the national court to ensure that any conditions to which the registration of a health spa in such a register may be subject are objective and do not have the effect of making the provision of services between Member States more difficult than the provision of services purely within the Member State concerned.

Articles 49 EC and 50 EC are to be interpreted as meaning that they preclude the application of national rules under which the reimbursement of expenditure incurred on board, lodging, travel, visitors tax and the making of a final medical report in connection with a health cure taken in another Member State is precluded where the person concerned has not awaited the conclusion of the court proceedings brought against the decision refusing to recognise that expenditure as eligible for assistance before commencing the cure in question.

(1) OJ C 84 of 6.04.2002.

30.4.2004

Official Journal of the European Union

C 106/6

JUDGMENT OF THE COURT

(Sixth Chamber)

of 1 April 2004

in Joined Cases C-53/02 and C-217/02 (reference for a preliminary ruling from the Conseil d'Etat): Commune de Braine-le-Château (C-53/02), and Michel Tillieut and Others (C-217/02) (1)

(Directives 75/442/EEC and 91/156/EEC - Waste - Management plans - Suitable sites and installations for waste disposal - Permit granted in the absence of a management plan containing a map specifying planned locations for disposal sites)

(2004/C 106/08)

Language of the case: French

In Joined Cases C-53/02 and C-217/02 – references to the Court under Article 234 EC by the Conseil d'État (Belgium) for a preliminary ruling in the proceedings pending before that court between Commune de Braine-le-Château (C-53/02), Michel Tillieut and Others (C-217/02) and Région wallonne, interveners: BIFFA Waste Services SA (C-53/02), Philippe Feron (C-53/02), Philippe De Codt (C-53/02) and Propreté, Assainissement, Gestion de l'environnement SA (PAGE) (C-217/02) – on the interpretation of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32) – the Court (Sixth Chamber), composed of: C. Gulmann, acting for the President of the Sixth Chamber, J.N. Cunha Rodrigues (Rapporteur), J.-P. Puissochet, R. Schintgen and F. Macken, Judges; J Mischo, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 1 April 2004, in which it ruled:

Article 7 of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, must be interpreted to mean that the management plan or plans which the competent authorities of the Member States are required to draw up under that provision must include either a geographical map specifying the exact location of waste disposal sites or location criteria which are sufficiently precise to enable the competent authority responsible for issuing a permit under Article 9 of the Directive to determine whether the site or installation in question falls within the management framework provided for by the plan.

Article 7(1) of Directive 75/442, as amended by Directive 91/156, must be interpreted as requiring Member States to draw up waste management plans within a reasonable period, which may go beyond the time-limit for transposing Directive 91/156 laid down in the first subparagraph of Article 2(1) of the latter.

Articles 4, 5 and 7 of Directive 75/442, as amended by Directive 91/156, read in conjunction with Article 9 thereof, must be interpreted as not precluding a Member State which has not adopted, within the period prescribed, one or more waste management plans relating to suitable sites or installations for waste disposal from issuing individual permits to operate such sites and installations.

(1) OJ C 109 of 4.5.2002.

OJ C 191 of 10.8.2002.

30.4.2004

Official Journal of the European Union

C 106/7

JUDGMENT OF THE COURT

(Fifth Chamber)

of 25 March 2004

in Case C-71/02 (reference for a preliminary ruling from the Oberster Gerichtshof): Herbert Karner Industrie-Auktionen GmbH v Troostwijk GmbH (1)

(‘Free movement of goods - Article 28 EC - Measures having equivalent effect - Advertising restrictions - Reference to the commercial origin of goods - Goods from an insolvent company - Directive 84/450/EEC - Fundamental rights - Freedom of expression - Principle of proportionality’)

(2004/C 106/09)

Language of the case:German

In Case C-71/02: reference to the Court under Article 234 EC from the Oberster Gerichtshof (Austria) for a preliminary ruling in the proceedings pending before that court between Herbert Karner Industrie-Auktionen GmbH and Troostwijk GmbH Ä on the interpretation of Article 28 EC Ä the Court (Fifth Chamber), composed of: C.W.A. Timmermans, acting as President of the Fifth Chamber, A. Rosas (Rapporteur) and S. von Bahr, Judges; S. Alber, Advocate General; F. Contet, Principal Administrator, for the Registrar, gave a judgment on 25 March 2004, the operative part of which is as follows:

Article 28 EC does not preclude national legislation which, irrespective of the truthfulness of the information, prohibits any reference to the fact that goods come from an insolvent estate, where, in public announcements or notices intended for a larger circle of persons, notices given of the sale of goods which originate from, but no longer constitute part of, the insolvent estate.

(1) OJ C 144, 15.6.2002.

30.4.2004

Official Journal of the European Union

C 106/7

JUDGMENT OF THE COURT

(Fifth Chamber)

of 1 April 2004

in Case C-90/02 (reference for a preliminary ruling from the Bundesfinanzhof): Finanzamt Gummersbach v Gerhard Bockemühl (1)

(‘Reference for a preliminary ruling - Interpretation of Article 18(1) of the Sixth VAT Directive - Conditions for exercise of the right to deduct input VAT - Recipient of a service referred to in Article 9(2)(e) of the Sixth VAT Directive - Supply of staff by a taxable person established abroad - Recipient liable for VAT as the person to whom the supply was made - Requirement to hold an invoice - Content of the invoice’)

(2004/C 106/10)

Language of the case: German

In Case C-90/02: reference to the Court under Article 234 EC by the Bundesfinanzhof (Federal Finance Court) (Germany) for a preliminary ruling in the proceedings pending before that court between Finanzamt Gummersbach and Gerhard Bockemühl – on the interpretation of Articles 18(1) and 22(3) 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 (OJ 1977 L 145, p. 1), as amended by Council Directive 91/680/EEC of 16 December 1991 supplementing the common system of value added tax and amending Directive 77/388 with a view to the abolition of fiscal frontiers (OJ 1991 L 376, p. 1) and by Council Directive 92/111/EEC of 14 December 1992 amending Directive 77/388 and introducing simplification measures with regard to value added tax (OJ 1992 L 384, p. 47) – the Court (Fifth Chamber), composed of: P. Jann, acting for the President of the Fifth Chamber, A. Rosas and S. von Bahr (Rapporteur), Judges; F.G. Jacobs, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 1 April 2004, in which it ruled:

A taxable person who is liable, as the recipient of services, for the value added tax relating thereto, in accordance with Article 21(1) 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, as amended by Council Directive 91/680/EEC of 16 December 1991 supplementing the common system of value added tax and amending Directive 77/388 with a view to the abolition of fiscal frontiers and by Council Directive 92/111/EEC of 14 December 1992 amending Directive 77/388 and introducing simplificationmeasures with regard to value added tax, is not obliged to be in possession of an invoice drawn up in accordance with Article 22(3) of that directive in order to be able to exercise his right to deduct.

(1) OJ C 169 of 13.7.2002.

30.4.2004

Official Journal of the European Union

C 106/8

JUDGMENT OF THE COURT

(Fifth Chamber)

of 1 April 2004

in Case C-99/02: Commission of the European Communities v Italian Republic (1)

(‘Failure of a Member State to fulfil obligations - State aid - Second subparagraph of Article 88(2) EC - Aids incompatible with the common market - Obligation to recover - Absolute impossibility of implementation’)

(2004/C 106/11)

Language of the case: Italian

In Case C-99/02: Commission of the European Communities (Agent: V. Di Bucci), with an address for service in Luxembourg, v Italian Republic (Agent: I. Braguglia, assisted by O. Fiumara), with an address for service in Luxembourg – application for a declaration that, by not adopting within the time-limit prescribed all measures necessary for the recovery from the recipients of the aid which was found, according to Commission Decision 2000/128/EC of 11 May 1999 concerning aid granted by Italy to promote employment (OJ 2000 L 42, p. 1), notified on 4 June 1999, to be unlawful and incompatible with the common market, and in any event by not notifying the Commission of such measures, the Italian Republic had failed to fulfil its obligations under Articles 3 and 4 of that decision and under the EC Treaty – the Court (Fifth Chamber), composed of: P. Jann, acting for the President of the Fifth Chamber, C.W.A. Timmermans, A. Rosas, A. La Pergola and S. von Bahr (Rapporteur), Judges; D. Ruiz-Jarabo Colomer, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, delivered a judgment on 1 April 2004, in which it:

Declares that, by not adopting within the time-limit prescribed all measures necessary for the recovery from the recipients of the aid which was found, according to Commission Decision 2000/128/EC of 11 May 1999 concerning aid granted by Italy to promote employment, to be unlawful and incompatible with the common market, the Italian Republic has failed to fulfil its obligations under Articles 3 and 4 of that decision;

2)	Orders the Italian Republic to pay the costs.

(1) OJ C 118 of 18.5.2002.

30.4.2004

Official Journal of the European Union

C 106/8

JUDGMENT OF THE COURT

(Sixth Chamber)

of 1 April 2004

in Case C-112/02 (reference for a preliminary ruling from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen): Kohlpharma GmbH v Bundesrepublik Deutschland (1)

(‘Free movement of goods - Medicinal products - Importation - Application for marketing authorisation under a simplified procedure - Common origin’)

(2004/C 106/12)

Language of the case. German

In Case C-112/02: reference to the Court under Article 234 EC by the Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Higher Regional Court for the Land of North Rhine-Westphalia (Germany) for a preliminary ruling in the proceedings pending before that court between Kohlpharma GmbH and Bundesrepublik Deutschland – on the interpretation of Community law, in particular Articles 28 EC and 30 EC – the Court (Sixth Chamber), composed of: C. Gulmann (Rapporteur), acting for the President of the Sixth Chamber, J.N. Cunha Rodrigues, J.-P. Puissochet, R. Schintgen and F. Macken, Judges; A. Tizzano, Advocate General; H.A. Rühl, Principal Administrator, for the Registrar, has given a judgment on 1 April 2004, in which it ruled:

In the case where

an application for a marketing authorisation for a medicinal product is submitted with reference to a medicinal product that has already been authorised,

the medicinal product which is the subject of the application is imported from a Member State in which it has obtained a marketing authorisation,

the assessment of safety and efficacy carried out for the medicinal product which is already authorised can be used in the application for a marketing authorisation for the second medicinal product without any risk to public health,

Articles 28 EC and 30 EC preclude the application being rejected solely on the ground that the two medicinal products do not have a common origin.

(1) OJ C 156 of 29.6.2002.

30.4.2004

Official Journal of the European Union

C 106/9

JUDGMENT OF THE COURT

(Fifth Chamber)

of 25 March 2004

in Case C-118/02 (reference for a preliminary ruling from the Tribunal Supremo): Industrias de Deshidratación Agrícola SA v Administración del Estado (1)

(‘Regulations (EC) No 603/95 and No 785/95 - Dried fodder - Aid scheme - Conditions to be met by processing undertakings - Additional requirements imposed under national rules’)

(2004/C 106/13)

Language of the case: Spanish

In Case C-118/02: reference to the Court under Article 234 EC from the Tribunal Supremo (Spain) for a preliminary ruling in the proceedings pending before that court between Industrias de Deshidratación Agrícola SA and Administración del Estado Ä on the interpretation of, in particular, Council Regulation (EC) No 603/95 of 21 February 1995 on the common organisation of the market in dried fodder (OJ 1995 L 63, p. 1) and Commission Regulation (EC) No 785/95 of 6 April 1995 laying down detailed rules for the application of Regulation No 603/95 (OJ 1995 L 79, p. 5) Ä the Court (Fifth Chamber), composed of: P. Jann (Rapporteur), acting for the President of the Fifth Chamber, C.W.A. Timmermans, A. Rosas, A. La Pergola and S. von Bahr, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, has given a judgment on 25 March 2004, in which it has ruled:

Council Regulation (EC) No 603/95 of 21 February 1995 on the common organisation of the market in dried fodder and Commission Regulation (EC) No 785/95 of 6 April 1995 laying down detailed rules for the application of Regulation No 603/95 must be interpreted as meaning that they do not preclude national provisions which lay down specific requirements with respect to green or fresh fodder for processing, linked to the method of delivery, the moisture content, the time within which processing must take place and the growth of such fodder within a specified area.

(1) OJ C 144 of 15.6.2002.

30.4.2004

Official Journal of the European Union

C 106/9

JUDGMENT OF THE COURT (FULL COURT)

23 March 2004

In Case C-138/02 (Reference for a preliminary ruling from the Verwaltungsgericht Frankfurt am Main): Brian Francis Collins v Secretary of State for Work and Pensions (1)

(‘Freedom of movement for persons - Article 48 of the EC Treaty (now, after amendment, Article 39 EC) - Concept of “worker” - Social security allowance paid to jobseekers - Residence requirement - Citizenship of the European Union’)

(2004/C 106/14)

Language of the case: English

In Case C-138/02: References to the Court under Article 234 EC by the Social Security Commissioner (United Kingdom) for a preliminary ruling in the proceedings pending before that court between Brian Francis Collins and Secretary of State for Work and Pensions, on the interpretation of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475), as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992 (OJ 1992 L 245, p. 1), and of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (OJ, English Special Edition 1968 (II), p. 485), the Court (Full Court), composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, C. Gulmann, J.N. Cunha Rodrigues (Rapporteur) and A. Rosas, Presidents of Chambers, A. La Pergola, J.-P. Puissochet, R. Schintgen, N. Colneric and S. von Bahr, Judges; D. Ruiz-Jarabo Colomer, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, has given a judgment on 23 March 2004, in which it has ruled:

A person in the circumstances of the appellant in the main proceedings is not a worker for the purposes of Title II of Part I of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992. It is, however, for the national court or tribunal to establish whether the term “worker” as referred to by the national legislation at issue is to be understood in that sense.

A person in the circumstances of the appellant in the main proceedings does not have a right to reside in the United Kingdom solely on the basis of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families.

The right to equal treatment laid down in Article 48(2) of the EC Treaty (now, after amendment, Article 39(2) EC), read in conjunction with Articles 6 and 8 of the EC Treaty (now, after amendment, Articles 12 EC and 17 EC), does not preclude national legislation which makes entitlement to a jobseeker's allowance conditional on a residence requirement, in so far as that requirement may be justified on the basis of objective considerations that are independent of the nationality of the persons concerned and proportionate to the legitimate aim of the national provisions.

(1) OJ C 169 of 13.07.2002.

30.4.2004

Official Journal of the European Union

C 106/10

JUDGMENT OF THE COURT

(Full Court)

of 30 March 2004

in Case C-147/02 (reference for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division)): Michelle K. Alabaster v Woolwich plc, Secretary of State for Social Security (1)

(‘Social policy - Men and women - Equal pay - Pay during maternity leave - Calculation of amount - Whether to include a pay rise’)

(2004/C 106/15)

Language of the case: English

In Case C-147/02: reference to the Court under Article 234 EC from the Court of Appeal (England and Wales) (Civil Division) for a preliminary ruling in the proceedings pending before that court between Michelle K. Alabaster and Woolwich plc, Secretary of State for Social Security – on the interpretation of Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) and the judgment in Case C-342/93 Gillespie and Others [1996] ECR I-475 – the Court (Full Court), composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, C. Gulmann, J.N. Cunha Rodrigues and A. Rosas, Presidents of Chambers, A. La Pergola, J.-P. Puissochet, R. Schintgen (Rapporteur), F. Macken and N. Colneric, Judges; P. Léger, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, has given a judgment on 30 March 2004, in which it has ruled:

Article 119 of the EC Treaty (Articles 117 to 120 of the Treaty have been replaced by Articles 136 EC to 143 EC) must be interpreted as requiring that, in so far as the pay received by the worker during her maternity leave is determined at least in part on the basis of the pay she earned before her maternity leave began, any pay rise awarded between the beginning of the period covered by the reference pay and the end of the maternity leave must be included in the elements of pay taken into account in calculating the amount of such pay. This requirement is not limited to cases where the pay rise is back-dated to the period covered by the reference pay.

Absent any Community legislation in this sphere, it is for the competent national authorities to determine how, in compliance with all the provisions of Community law, and in particular Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual directive within the meaning of Article 16(1) of Directive 89/391/EEC), any pay rise awarded before or during maternity leave must be included in the elements of pay used to calculate the pay due to a worker during maternity leave.

(1) OJ C 144 of 15.6.2002.

30.4.2004

Official Journal of the European Union

C 106/11

JUDGMENT OF THE COURT

(Full Court)

of 30 March 2004

in Case C-167/02 P: Willi Rothley and Others v European Parliament (1)

(‘Appeal - Measure of the Parliament concerning the terms and conditions for internal investigations in relation to the prevention of fraud - Action for annulment - Admissibility - Independence and immunity of Members of the Parliament - Confidentiality connected with the work of Parliamentary committees of inquiry - European Anti-Fraud Office (OLAF) - Investigative powers’)

(2004/C 106/16)

Language of the case: German

In Case C-167/02 P: appeal by Willi Rothley, residing in Rockenhausen (Germany), Marco Pannella, residing in Rome (Italy), Marco Cappato, residing in Milan (Italy), Gianfranco Dell'Alba, residing in Rome, Benedetto Della Vedova, residing in Milan, Olivier Dupuis, residing in Rome, Klaus-Heiner Lehne, residing in Düsseldorf (Germany), Johannes Voggenhuber, residing in Vienna (Austria), Christian von Boetticher, residing in Pinneberg (Germany), Emma Bonino, residing in Rome, Elmar Brok, residing in Bielefeld (Germany), Renato Brunetta, residing in Rome, Udo Bullmann, residing in Gießen (Germany), Michl Ebner, residing in Bolzano (Italy), Raina A. Mercedes Echerer, residing in Vienna, Markus Ferber, residing in Bobingen (Germany), Francesco Fiori, residing in Voghera (Italy), Evelyne Gebhardt, residing in Mulfingen (Germany), Norbert Glante, residing in Werder/Havel (Germany), Alfred Gomolka, residing in Greifswald (Germany), Friedrich-Wilhelm Graefe zu Baringdorf, residing in Spenge (Germany), Lissy Gröner, residing in Neustadt (Germany), Ruth Hieronymi, residing in Bonn (Germany), Magdalene Hoff, residing in Hagen (Germany), Georg Jarzembowski, residing in Hamburg (Germany), Karin Jöns, residing in Bremen (Germany), Karin Junker, residing in Düsseldorf, Othmar Karas, residing in Vienna, Margot Keßler, residing in Kehmstedt (Germany), Heinz Kindermann, residing in Strasburg (Germany), Karsten Knolle, residing in Quedlinburg (Germany), Dieter-Lebrecht Koch, residing in Weimar (Germany), Christoph Konrad, residing in Bochum (Germany), Constanze Krehl, residing in Leipzig (Germany), Wilfried Kuckelkorn, residing in Bergheim (Germany), Helmut Kuhne, residing in Soest (Germany), Bernd Lange, residing in Hanover (Germany), Kurt Lechner, residing in Kaiserslautern (Germany), Jo Leinen, residing in Saarbrucken (Germany), Rolf Linkohr, residing in Stuttgart (Germany), Giorgio Lisi, residing in Rimini (Italy), Erika Mann, residing in Bad Gandersheim (Germany), Thomas Mann, residing in Schwalbach/Taunus (Germany), Mario Mauro, residing in Milan, Hans-Peter Mayer, residing in Vechta (Germany), Winfried Menrad, residing in Schwäbisch Hall (Germany), Peter-Michael Mombaur, residing in Düsseldorf, Rosemarie Müller, residing in Nieder-Olm (Germany), Hartmut Nassauer, residing in Wolfhagen (Germany), Giuseppe Nistico, residing in Rome, Willi Piecyk, residing in Reinfeld (Germany), Hubert Pirker, residing in Klagenfurt (Austria), Christa Randzio-Plath, residing in Hamburg, Bernhard Rapkay, residing in Dortmund (Germany), Mechtild Rothe, residing in Bad Lippspringe (Germany), Dagmar Roth-Behrendt, residing in Berlin (Germany), Paul Rübig, residing in Wels (Austria), Umberto Scapagnini, residing in Catane (Italy), Jannis Sakellariou, residing in Munich (Germany), Horst Schnellhardt, residing in Langenstein (Germany), Jürgen Schröder, residing in Dresden (Germany), Martin Schulz, residing in Würselen (Germany), Renate Sommer, residing in Herne (Germany), Ulrich Stockmann, residing in Bad Kösen (Germany), Maurizio Turco, residing in Pulsano (Italy), Guido Viceconte, residing in Bari (Italy), Ralf Walter, residing in Cochem (Germany), Brigitte Wenzel-Perillo, residing in Leipzig, Rainer Wieland, residing in Stuttgart, Stefano Zappala, residing in Latina (Italy), and Jürgen Zimmerling, residing in Essen (Germany), represented by: H.-J. Rabe, Rechtsanwalt, against the judgment of the Court of First Instance (Fifth Chamber) of 26 February 2002 in Case T-17/00 Rothley and Others v Parliament [2002] ECR II-579, seeking to have that judgment set aside, the other parties to the proceedings being: European Parliament, represented by J. Schoo and H. Krück, acting as Agents, with an address for service in Luxembourg, defendant at first instance, Kingdom of the Netherlands, (Agent: H.G. Sevenster), French Republic, Council of the European Union (Agents: M. Bauer and I. Díez Parra) and Commission of the European Communities (Agents: H.-P. Hartvig and U. Wölker) with an address for service in Luxembourg, interveners at first instance, the Court (Full Court), composed of V. Skouris, President, P. Jann (Rapporteur), C. Gulmann, J.N. Cunha Rodrigues and A. Rosas, Presidents of Chambers, A. La Pergola, J.-P. Puissochet, R. Schintgen, F. Macken, N. Colneric and S. von Bahr, Judges, Advocate General: F.G. Jacobs, Registrar: M.-F. Contet, Principal Administrator, has given a judgment on 30 March 2004 in which it:

1)	Dismisses the appeal;

2)	Orders the appellants to bear their own costs and to pay those incurred by the European Parliament;

3)	Orders the Kingdom of the Netherlands, the Council of the European Union and the Commission of the European Communities to bear their own costs.

(1) OJ C 156 of 29.6.2002.

30.4.2004

Official Journal of the European Union

C 106/12

JUDGMENT OF THE COURT

(Full Court)

23 March 2004

In Case C-233/02: French Republic v Commission of the European Communities (1)

(‘Guidelines on regulatory cooperation and transparency concluded with the United States of America - Non-binding character’)

(2004/C 106/17)

Language of the case: French

In Case C-233/02: French Republic (Agents: R. Abraham, G. de Bergues and P. Boussaroque), with an address for service in Luxembourg, against Commission of the European Communities (Agents: P.J. Kuijper and A. van Solinge), with an address for service in Luxembourg, supported by United Kingdom of Great Britain and Northern Ireland (Agents: J. Collins, together with M. Hoskins), with an address for service in Luxembourg: Application for annulment of the decision by which the Commission concluded an agreement with the United States of America on Guidelines on Regulatory Cooperation and Transparency, the Court (Full Court), composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans (Rapporteur), C. Gulmann and J.N. Cunha Rodrigues (Presidents of Chambers), A. La Pergola, J.-P. Puissochet, R. Schintgen, F. Macken, N. Colneric and S. von Bahr, Judges; S. Alber, Advocate General; R. Grass, Registrar, has given a judgment on 23 March 2004, in which it has ruled:

1.	Dismisses the application;

2.	Orders the French Republic to pay the costs.

(1) OJ C 180 of 27.07.2002.

30.4.2004

Official Journal of the European Union

C 106/12

JUDGMENT OF THE COURT

23 March 2004

In Case C-234/02 P: European Ombudsman v Frank Lamberts (1)

(‘Appeal - Inadmissibility - Non-contractual liability - European Ombudman's manner of dealing with a complaint concerning an internal competition for establishment’)

(2004/C 106/18)

Language of the case: French

In Case C-234/02 P: European Ombudsman (Agent: J. Sant'Anna), with an address for service in Luxembourg, supported by European Parliament (Agents: H. Krück and C. Karamarcos), with an address for service in Luxembourg: Appeal against the judgment of the Court of First Instance of the European Communities (Third Chamber) of 10 April 2002 in Case T-209/00 Lamberts v Ombudsman [2002] ECR II-2203, seeking to have that judgment set aside in part; the other party to the proceedings being: Frank Lamberts, represented by E. Boigelot, avocat, with an address for service in Luxembourg, applicant at first instance and appellant on a cross-appeal, the Court (Fifth Chamber), composed of: V. Skouris, President, P. Jann, C.W.A Timmermans, C. Gulmann (Rapporteur), J.N. Cunha Rodrigues and A. Rosas, Presidents of Chambers, J.-P. Puissochet, R. Schintgen, F. Macken, N. Colneric and S. von Bahr, Judges; L.A. Geelhoed, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 23 March 2004, in which it:

1)	Dismisses the appeal and cross-appeal;

2)	Orders the parties to bear their own costs.

(1) OJ C 180 of 27.07.2002.

30.4.2004

Official Journal of the European Union

C 106/12

JUDGMENT OF THE COURT

(Sixth Chamber)

of 1 April 2004

in Case C-237/02 (reference for a preliminary ruling from the Bundesgerichtshof): Freiburger Kommunalbauten GmbH Baugesellschaft & Co. KG v Ludwig Hofstetter, Ulrike Hofstetter (1)

(‘Directive 93/13/EEC - Unfair terms in consumer contracts - Contract for the building and supply of a parking space - Reversal of the order of performance of contractual obligations provided for under national law - Clause obliging the consumer to pay the price before the seller or supplier has performed his obligations - Obligation on the seller or supplier to provide a guarantee’)

(2004/C 106/19)

Language of the case: German

In Case C-237/02: reference to the Court under Article 234 EC by the Bundesgerichtshof (Federal Court of Justice) (Germany) for a preliminary ruling in the proceedings pending before that court between Freiburger Kommunalbauten GmbH Baugesellschaft & Co. KG and Ludger Hofstetter, Ulrike Hofstetter – on the interpretation of Article 3(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) – the Court (Fifth Chamber), composed of: P. Jann (Rapporteur), acting for the President of the Fifth Chamber, C.W.A. Timmermans, A. Rosas, A. La Pergola and S. von Bahr, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, has given a judgment on 1 April 2004, in which it has ruled:

It is for the national court to decide whether a contractual term such as that at issue in the main proceedings satisfies the requirements for it to be regarded as unfair under Article 3(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts.

(1) OJ C 202 of 24.8.2002.

30.4.2004

Official Journal of the European Union

C 106/13

JUDGMENT OF THE COURT

(Sixth Chamber)

of 1 April 2004

in Case C-263/02 P: Commission of the European Communities v Jégo-Quéré & Cie SA (1)

(‘Appeal - Admissibility of an action for annulment of a regulation brought by a legal person’)

(2004/C 106/20)

Language of the case: French

In Case C-263/02 P: Commission of the European Communities (Agents: T. van Rijn and A. Bordes) with an address for service in Luxembourg – appeal against the judgment of the Court of First Instance of the European Communities (First Chamber, Extended Composition) of 3 May 2002 in Case T-177/01 Jégo-Quéré v Commission [2002] ECR II-2365), seeking to have that judgment set aside, the other party to the proceedings being: Jégo-Quéré & Cie SA, represented by A. Creus Carreras and B. Uriarte Valiente, abogados – the Court (Sixth Chamber), composed of: C. Gulmann (Rapporteur), acting for the President of the Sixth Chamber, J.N. Cunha Rodrigues, J.-P. Puissochet, R. Schintgen and F. Macken, Judges; F.G. Jacobs, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, has given a judgment on 1 April 2004 in which it:

1.	Sets aside the judgment of the Court of First Instance of 3 May 2002 in Case T-177/01 Jégo-Quéré v Commission;

Declares the application for annulment by Jégo-Quéré & Cie SA of Articles 3(d) and 5 of Commission Regulation (EC) No 1162/2001 of 14 June 2001 establishing measures for the recovery of the stock of hake in ICES sub-areas III, IV, V, VI and VII and ICES divisions VIII a, b, d, e and associated conditions for the control of activities of fishing vessels to be inadmissible;

3.	Orders Jégo-Quéré & Cie SA to pay the costs of both sets of proceedings.

(1) OJ C 233 of 28.9.2002.

30.4.2004

Official Journal of the European Union

C 106/13

JUDGMENT OF THE COURT

(Third Chamber)

of 1 April 2004

in Case C-286/02 (reference for a preliminary ruling from the Tribunale de Treviso): Bellio F.lli against Prefettura di Treviso (1)

(‘Agriculture - Animal health - Protection measures with regard to transmissible spongiform encephalopathies - Use of animal proteins in animal feed’)

(2004/C 106/21)

Language of the case: Italian

In Case C-286/02: reference to the Court under Article 234 EC from the Tribunale di Treviso (Italy) for a preliminary ruling in the proceedings pending before that court between Bellio F.lli and Prefettura di Treviso – on the interpretation of Council Decision 2000/766/EC of 4 December 2000 concerning certain protection measures with regard to transmissible spongiform encephalopathies and the feeding of animal protein (OJ 2000 L 306, p. 32) and Commission Decision 2001/9/EC of 29 December 2000 concerning control measures required for the implementation of Decision 2000/766 (OJ 2001 L 2, p. 32) – the Court (Third Chamber), composed of: A. Rosas (Rapporteur), President of the Chamber, R. Schintgen and N. Colneric, Judges; L.A. Geelhoed, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, has given a judgment on 1 April 2004, in which it has ruled:

The first indent of Article 2(2) of Council Decision 2000/766/EC of 4 December 2000 concerning certain protection measures with regard to transmissible spongiform encephalopathies and the feeding of animal protein, and Article 1(1) of Commission Decision 2001/9/EC of 29 December 2000 concerning control measures required for the implementation of Decision 2000/766, together with the other Community rules on which those provisions are based, must be interpreted as meaning that the presence, even accidental, of unauthorised substances in fish flour used in the production of feedingstuffs intended for animals other than ruminants is not permitted and that they allow traders no level of tolerance. The destruction of consignments of contaminated flour is a preventive measure provided for by Article 3(1) of Decision 2000/766.

2.	Article 13 of the European Economic Area Agreement of 2 May 1992 must be interpreted as meaning that Decisions 2000/766 and 2001/9 are not incompatible therewith.

(1) OJ C 247 of 12.10.2002

30.4.2004

Official Journal of the European Union

C 106/14

JUDGMENT OF THE COURT

(Fifth Chamber)

of 1 April 2004

in Case C-320/02 (Reference for a preliminary ruling from the Regeringsrätten): Förvaltnings AB Stenholmen v Riksskatteverket (1)

(‘Sixth VAT Directive - Article 26a - Special arrangements applicable to second-hand goods - The term “second-hand goods” - Horse sold on after training’)

(2004/C 106/22)

Language of the case: Swedish

In Case C-320/02: reference to the Court under Article 234 EC from the Regeringsrätten (Sweden) for a preliminary ruling in the proceedings pending before that court between Förvaltnings AB Stenholmen v Riksskatteverket on the interpretation of Article 26a 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), as amended by Council Directive 94/5/EC of 14 February 1994 (OJ 1994 L 60, p. 16) – the Court (Fifth Chamber), composed of: P. Jann, acting as President of the Fifth Chamber, A. Rosas (Rapporteur) and S. von Bahr, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, gave a judgment on 1 April 2004, the operative part of which is as follows:

Article 26a 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, as amended by Council Directive 94/5/EC of 14 February 1994, must be interpreted as meaning that live animals may be considered to be second-hand goods within the meaning of that provision .

2.	Thus an animal bought from a private individual (other than the breeder) which is sold on after training for a specific use may be considered to be second-hand goods within the meaning of that provision.

(1) OJ C 274 of 9.11.2002

30.4.2004

Official Journal of the European Union

C 106/14

JUDGMENT OF THE COURT

(First Chamber)

of 1 April 2004

in Case C-389/02 (reference for a preliminary ruling from the Finanzgericht Hamburg): Deutsche See-Bestattungs-Genossenschaft eG v Hauptzollamt Kiel (1)

(‘Excise duties - Exemption from tax on mineral oils - Directive 92/81/EEC - Article 8(1)(c) - The term “navigation”’)

(2004/C 106/23)

Language of the case: German

In Case C-389/02: reference to the Court under Article 234 EC by the Finanzgericht (Finance Court) Hamburg (Germany) for a preliminary ruling in the proceedings pending before that court between Deutsche See-Bestattungs-Genossenschaft eG, and Hauptzollamt Kiel – on the interpretation of Article 8(1)(c) of Council Directive 92/81/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils (OJ 1992 L 316, p. 12) – the Court (First Chamber), composed of: P. Jann, President of the Chamber, A. Rosas, A. La Pergola, R. Silva de Lapuerta (Rapporteur) and K. Lenaerts, Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, has given a judgment on 1 April 2004, in which it ruled:

Article 8(1)(c) of Council Directive 92/81/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils should be interpreted to mean that the term ‘navigation within Community waters (including fishing), other than in private pleasure craft’ includes all forms of navigation, irrespective of the purpose of the voyage, when that voyage is made for commercial purposes.

(1) OJ C 19 of 25.1.2003.

30.4.2004

Official Journal of the European Union

C 106/15

JUDGMENT OF THE COURT

(Third Chamber)

of 1 April 2004

in Case C-64/03: Commission of the European Communities v Federal Republic of Germany (1)

(‘Failure of a Member State to fulfil obligations - Failure to implement Directive 98/30/EC’)

(2004/C 106/24)

Language of the case: German

In Case C-64/03: Commission of the European Communities (Agents: J. Grunwald and H. Støvlbaek), with an address for service in Luxembourg, v Federal Republic of Germany (Agents: W.-D. Plessing and M. Lumma) – application for a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 98/30/EC of the European Parliament and of the Council of 22 June 1998 concerning common rules for the internal market in natural gas (OJ 1998 L 204, p. 1), the Federal Republic of Germany has failed to fulfil its obligations under that Directive – the Court (Third Chamber), composed of: A. Rosas, President of the Chamber, R. Schintgen (Rapporteur), and N. Colneric, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, has given judgment on 1 April 2004, in which it:

declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 98/30/EC of the European Parliament and of the Council of 22 June 1998 concerning common rules for the internal market in natural gas, the Federal Republic of Germany has failed to fulfil its obligations under that Directive;

2)	orders the Federal Republic of Germany to pay the costs.

(1) OJ C 101 of 26.4.2003.

30.4.2004

Official Journal of the European Union

C 106/15

JUDGMENT OF THE COURT

(Fifth Chamber)

of 30 March 2004

in Case C-201/03: Commission of the European Communities v Kingdom of Sweden (1)

(‘Failure of a Member State to fulfil obligations - Disposal of waste oils - Failure to transpose Directive 75/439/EEC’)

(2004/C 106/25)

Language of the case: Swedish

In Case C-201/03: Commission of the European Communities (Agents: L. Ström and M. Konstantinidis), with an address for service in Luxembourg, v Kingdom of Sweden (Agent: A. Kruse) – application for a declaration that, by failing to adopt the necessary measures under Article 3(1) of Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils (OJ 1975 L 194, p. 23), as amended by Council Directive 87/101/EEC of 22 December 1986 (OJ 1987 L 42, p. 43), to ensure that priority is given to the processing of waste oils by regeneration where technical, economic and organisational constraints so allow, the Kingdom of Sweden has failed to fulfil its obligations under that directive – the Court (Fifth Chamber), composed of: C. Gulmann, President of the Chamber, S. von Bahr and R. Silva de Lapuerta (Rapporteur), Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, has given a judgment on 30 March 2004, in which it:

Declares that, by failing to take the necessary measures under Article 3(1) of Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils, as amended by Council Directive 87/101/EEC of 22 December 1986, to ensure that priority is given to the processing of waste oils by regeneration where technical, economic and organisational constraints so allow, the Kingdom of Sweden has failed to fulfil its obligations under that directive;

2.	Orders the Kingdom of Sweden to pay the costs

(1) OJ C 158 of 5.7.2003

30.4.2004

Official Journal of the European Union

C 106/16

JUDGMENT OF THE COURT

(Third Chamber)

of 1 April 2004

in Case C-375/03: Commission of the European Communities v Grand Duchy of Luxembourg (1)

(‘Failure of a Member State to fulfil obligations - Failure to implement Directive 2000/30/EC’)

(2004/C 106/26)

Language of the case: French

In Case C-375/03: Commission of the European Communities (Agent: W. Wils), with an address for service in Luxembourg, v Grand Duchy of Luxembourg (Agent: S. Schreiner) – application for a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2000/30/EC of the European Parliament and of the Council of 6 June 2000 on the technical roadside inspection of the roadworthiness of commercial vehicles circulating in the Community (OJ 2000 L 203, p. 1), or, in any event, by failing to inform the Commission thereof, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that Directive – the Court (Third Chamber), composed of: A. Rosas (Rapporteur), President of the Chamber, N. Colneric and K. Schiemann, Judges; J. Kokott, Advocate General; R. Grass, Registrar, gave a judgment on 1 April 2004, the operative part of which is as follows:

Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2000/30/EC of the European Parliament and of the Council of 6 June 2000 on the technical roadside inspection of the roadworthiness of commercial vehicles circulating in the Community, 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 251 of 18.10.2003

30.4.2004

Official Journal of the European Union

C 106/16

Application for autorisation to serve a garnishee order brought on 17 March 2004 by Tertir-Terminais de Portugal against the Commission of the European Communities

(Case C-1/04 SA)

(2004/C 106/27)

An application for authorisation to serve a garnishee order on the Commission of the European Communities was brought before the Court of Justice of the European Communities on 17 March 2004 by Tertir-Terminais de Portugal SA, represented by G. Vandersanden, C. Houssa, L. Lévi and F. Gonçalves Pereira, avocats.

The applicant claims that the Court should:

—

authorise the applicant under Article 1 of the Protocol on the Privileges and Immunities of the European Communities to serve a garnishee order on the European Commission relating to the sums owed by the European Community to the Republic of Guinea-Bissau in respect of compensation payable under Council Regulation (EC) No 249/2002 of 21 January 2002 concerning the conclusion of the Protocol establishing the fishing opportunities and the compensation provided for in the Agreement between the European Economic Community and the Government of the Republic of Guinea-Bissau on fishing off the coast of Guinea-Bissau for the period 16 June 2001 to 15 June 2006, (1) in security of a right to receive payment valued at EUR 8 000 000;

—	order the defendant to pay the costs.

(1) OJ L 40, 12.12.2002, p. 1.

30.4.2004

Official Journal of the European Union

C 106/16

ORDER OF THE COURT OF JUSTICE

(Third Chamber)

of 18 March 2004

in Case C–45/03 (Request for a preliminary ruling by the Tribunale di Catania): Oxana Dem'Yanenko (1)

(‘Reference for a preliminary ruling - Free movement for persons - Situation falling outside the scope of Directive 64/221/EEC - Fundamental rights - European Convention on Human Rights - Expulsion of a third country national without family or matrimonial ties with a national of a Member State - Validation procedure for the order for the forcible removal of a third country national - Definition of “court of a Member State” - Court with jurisdiction, for the purpose of Article 68 EC, to make a reference to the Court for a preliminary ruling - Lack of jurisdiction of the Court’)

(2004/C 106/28)

Language of the case: Italian

In Case C-45/03: Reference to the Court under Article 234 EC by the Tribunale di Catania, in the context of proceedings for the validation of an order for forcible removal against Oxana Dem'Yanenko, for a preliminary ruling on, first, Articles 7, 8 and 9 of Council Directive 64/221/EEC of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ 1964, English special edition: Series I Chapter 1963-1964 p. 117 ) and second, fundamental rights, the observance of which is ensured by the Court, as enshrined, in particular, in the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950, the Court of Justice (Third Chamber), composed of: A. Rosas (Rapporteur), President, N. Colneric and K. Schiemann, Judges; C. Stix-Hackl, Advocate General; R. Grass, Registrar, made an order on 18 March 2004, the operative part of which is as follows:

The Court of Justice of the European Communities clearly lacks jurisdiction to answer the questions referred by the Tribunale di Catania by the order of 19 January 2003.

(1) OJ C 83 of 5. 4. 2003

30.4.2004

Official Journal of the European Union

C 106/17

ORDER OF THE COURT OF JUSTICE

(Third Chamber)

of 15 March 2004

in Case C-59/03 (Reference for a preliminary ruling by the Tribunale di Genova): Mario Cigliola and Others v Ferrovie dello Stato SpA (FS) (1)

(Article 104(3) of the Rules of Procedure - Aid granted by the Member States - Definition - National legislation suspending a worker's right to continue working until retirement age)

(2004/C 106/29)

Language of the case: Italian

In Case C-59/03: Reference to the Court under Article 234 EC by the Tribunale di Genova (Italy), for a preliminary in proceedings between Mario Cigliola and Ferrovie dello Stato SpA (FS), on the interpretation of Article 87(1) EC, the Court (Third Chamber), composed of: A. Rosas, President, R. Schintgen and N. Colneric (Rapporteur), Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, made an order on 15 March 2004, the operative part of which is as follows:

A national law which allows an undertaking to terminate the contracts of employment of its oldest workers, setting aside the ordinary law that permits continuation of the employment relationship and which thereby creates a situation in which the undertaking can save on labour costs, with an immediate resulting burden on the State in the form of reduced contribution revenue and the payment of pensions to dismissed workers, does not constitute State aid within the meaning of Article 87(1) EC.

(1) OJ C 83 of 5.4.2003

30.4.2004

Official Journal of the European Union

C 106/17

ORDER OF THE COURT OF JUSTICE

(Fifth Chamber)

of 9 March 2004

in Case C–159/03 P: Jan Pflugradt v European Central Bank (1)

(‘Appeal - Staff of the ECB - Formal warning - Preparatory act - Act which does not adversely affect an official - Inadmissible’)

(2004/C 106/30)

Language of the case: German

In Case C-159/03 P: Jan Pflugradt, agent of the European Central Bank, residing in Frankfurt am Main (Germany), represented by N. Pflüger, with an address for service in Luxembourg, brought an appeal against the order of the Court of First Instance of the European Communities (Fifth Chamber), Case T-82/03 Pflugradt v ECB [2003] ECR I-0000, seeking to have that order set aside, the other party to the proceedings being: the European Central Bank (Agents: T. Gilliams, N. Urban and B. Wägenbaur), with an address for service in Luxembourg, the Court (Fifth Chamber), composed of: C. Gulmann, President, A La Pergola (Rapporteur), R. Silva de Lapuerta, Judges; P. Léger, Advocate General; R Grass, Registrar, made an order on 9 March 2004, the operative part of which is as follows:

1)	The appeal is dismissed.

2)	Mr Pflugradt is order to pay the costs.

(1) OJ C 135 of 7.6.2003

30.4.2004

Official Journal of the European Union

C 106/18

ORDER OF THE COURT OF JUSTICE

(Fifth Chamber)

of 19 March 2004

in Case C–196/03 P: Arnaldo Lucaccioni v Commission of the European Communities (1)

(‘Appeals - Officials - Action for damages - Admissibility’)

(2004/C 106/31)

Language of the case: Italian

In Case C-196/03 P: Arnaldo Lucaccioni, a former official of the Commission of the European Communities, residing in St-Leonards-on-Sea (United Kingdom), represented by M. Cimino, appeal against the judgment of the Court of First Instance of the European Communities, First Chamber, of 26 February 2003 in Case T-164/01 Lucaccioni v Commission, not yet published, seeking to have that judgment set aside, the other party to the proceedings being Commission of the European Communities (Agents: J. Currall, assisted by A. Dal Ferro) with an address for service in Luxembourg, defendant at first instance - the Court (Fifth Chamber), composed of C. Gulmann, President of the Chamber, S. von Bahr and R. Silva de Lapuerta, Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, made an order on 19 March 2004, the operative part of which is as follows:

1.	The appeal is dismissed.

2.	Mr Lucaccioni is ordered to pay the costs incurred at first instance.

(1) OJ C 171 of 19.7.2003

30.4.2004

Official Journal of the European Union

C 106/18

ORDER OF THE COURT

(Fifth Chamber)

of 11 February 2004

in Joined Cases C-438/03, C-439/03, C-509/03 and C-2/04 (reference for a preliminary ruling from the Giudice di pace di Bitonto): Antonio Cannito v Fondiaria Assicurazioni SpA, Pasqualina Murgulo v Assitalia Assicurazioni SpA, Vincenzo Manfredi v Lloyd Adriatico Assicurazioni SpA, Nicolò Tricarico v Assitalia Assicurazioni SpA (1)

(Reference for a preliminary ruling - Inadmissibility)

(2004/C 106/32)

Language of the case: Italian

In Joined Cases C-438/03, C-439/03, C-509/03 and C-2/04: reference to the Court under Article 234 EC from the Giudice di pace di Bitonto (Italy) for a preliminary ruling in the proceedings pending before that court between Antonio Cannito and Fondiaria Assicurazioni SpA (C-438/03), Pasqualina Murgulo and Assitalia Assicurazioni SpA (C-439/03), Vincenzo Manfredi and Lloyd Adriatico Assicurazioni SpA (C-509/03), and Nicolò Tricarico and Assitalia Assicurazioni SpA (C-2/04) - on the interpretation of, inter alia, Article 81 EC and Article 82 EC - the Court (Fifth Chamber), composed of C. Gulmann, President of the Chamber, S. von Bahr (Rapporteur) and R. Silva de Lapuerta, Judges, L.A. Geelhoed, Advocate General, R.Grass, Registrar, has made the following order on 11 February 2004, the operative part of which is as follows:

1.	Cases C-438/03, C-439/03, C-509/03 and C-2/04 are joined for the purposes of the order.

2.	The references for a preliminary ruling by the Giudice di pace di Bitonto by orders of 6 October 2003 (C-438/03 and C-439/03), 21 November 2003 (C-509/03) and 20 December 2003 (C-2/04) are inadmissible.

(1) OJ C 47, 21.2.2004, p. 13.

OJ C 71, 20.3.2004, p. 5.

OJ C 85, 3.4.2004, p. 13.

30.4.2004

Official Journal of the European Union

C 106/19

Action brought on 12 February 2004 by the Italian Republic against the Commission of the European Communities

(Case C-60/04)

(2004/C 106/34)

An action against the Commission of the European Communities was brought before the Court of Justice of the European Communities on 12 February 2004 by the Italian Republic represented by I.M. Braguglia, avvocato, acting as Agent, and A. Cingolo, Avvocato dello Stato.

The applicant claims that the Court should:

—

Annul Commission Decision No C(2003) 3971 final. of 26 November 2003 which establishes indicative allocations between the Member States of the commitment appropriations under Community initiatives for the period 1994-1999, notified by Letter No SG(2003)D233063 of the Secretary-General of the Commission of 26 November 2003 to the Italian Permanent Representation to the European Union;

—	Annul all annexes and supporting documents;

—	Order the Commission to pay the costs.

Pleas in law and main arguments:

I – Incorrect legal basis

I A –

Incorrect legal basis: lack of competence and in any event absence of the preconditions for the application of Article 12 of Regulation (EEC) No 2052/88 (1) during the preceding programme;

I B1 –

Incorrect legal basis: complete lack of competence to amend the indicative allocations at the date of the new decision;

I B2 –

Incorrect legal basis: total failure to identify the correct procedure.

II – Inadequate and contradictory statement of reasons for the contested decision: general

II A –

Inadequate and contradictory statement of reasons as regards the choice of committee procedure for adoption of the contested decision;

II B –

Inadequate and contradictory statement of reasons in the contested decision as regards the method for calculating the new indicative allocation;

II C –

Inadequate and contradictory statement of reasons as regards the difference between the reference tables annexed to the new and old decisions;

II D –

Inadequate and contradictory statement of reasons as regards the reference date for assessing the extent to which the Community initiative programme (CIP) 1994-1999 has been implemented.

(1) OJ 1988 L 185 of 15.7.1988, p. 9.

30.4.2004

Official Journal of the European Union

C 106/20

Reference for a preliminary ruling by the Oberlandesgericht Hamm by order of that Court of 27 January 2004 in the case of Brigitte and Marcus Klein against (1) …, (2) …, and (3) Rhodos Management Ltd

(Case C-73/04)

(2004/C 106/36)

Reference has been made to the Court of Justice of the European Communities by order of the Oberlandesgericht Hamm (Appellate Court, Hamm) of 27 January 2004, received at the Court Registry on 17 February 2004, for a preliminary ruling in the case of Brigitte and Marcus Klein against (1) …, (2) …, and (3) Rhodos Management Ltd on the following questions, pursuant to Article 3 of the Protocol of 3 June 1971 concerning the interpretation of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (hereinafter 'the Brussels Convention'):

Does the term ‘proceedings which have as their object … tenancies of immovable property’ in Article 16(1)(a) of the Brussels Convention, in the wording of the third accession agreement of 26 May 1989, also cover disputes concerning the use of a hotel apartment, of a specified type in a specified location, for a particular calendar week each year for a duration of almost 40 years where the contract at the same time and necessarily provides membership in a club whose main function is to ensure members the exercise of that right of use?

If the answer to the first question is in the affirmative, the further question arises:

Does the exclusive jurisdiction under Article 16(a)(a) of the Brussels Convention also apply to contractual claims which arise from a tenancy in that sense but have nothing to do with the tenancy in fact and in law, namely for entitlement to reimbursement of an erroneous overpayment for part of the fee for the use of the holiday apartment or club membership?

30.4.2004

Official Journal of the European Union

C 106/20

Reference for a preliminary ruling by the Arbeitsgericht Berlin by order of 14 January 2004 in the case of Veronika Richert v VK GmbH Service Gesellschaft für Vermögenszuordnung und Kommunalisierung mbH.

(Case C-81/04)

(2004/C 106/37)

Reference has been made to the Court of Justice of the European Communities by order of 14 January 2004 by the Arbeitsgericht Berlin (Labour Court, Berlin), which was received at the Court Registry on 18 February 2004, for a preliminary ruling in the case of Veronika Richert v VK GmbH Service Gesellschaft für Vermögenszuordnung und Kommunalisierung mbH on the following questions:

Must Council Directive 98/59/EC (1) of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies be interpreted to the effect that ‘redundancy’ for the purposes of Article 1(1)(a) thereof is to be construed as meaning the notice of dismissal as the first act in terminating the employment relationship or does ‘redundancy’ mean the termination of the employment relationship upon expiry of the period of notice?

2.	If ‘redundancy’ is to be construed as meaning the notice of dismissal, does the Directive require that both the consultation procedure under Article 2 of the Directive and the notification procedure under Articles 3 and 4 thereof must have been concluded before the notices of dismissal are issued?

3.	If ‘redundancy’ is to be construed as meaning the actual termination of the employment relationship, is it sufficient under the terms of the Directive if the consultation procedure is also conducted only after the notices of dismissal have been issued?

(1) OJ 1998 L 225, p. 16.

30.4.2004

Official Journal of the European Union

C 106/21

Appeal brought on 20 February 2004 (fax: 18 February 2004) by Audi AG against the judgment delivered on 3 December 2003 by the Second Chamber of the Court of First Instance of the European Communities in Case T-16/02 between Audi AG and the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case C-82/04 P)

(2004/C 106/38)

An appeal against the judgment delivered on 3 December 2003 by the Second Chamber of the Court of First Instance of the European Communities in Case T-16/02 between Audi AG and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of Justice of the European Communities on 20 February 2004 (fax: 18 February 2004) by Audi AG, represented by Rechtsanwälte Preu Bohlig & Partner, Leopoldstr. 11a, D-80802 Munich.

The appellant claims that the Court should:

1.	annul the judgment of the Court of First Instance of 3 December 2003 in Case T-16/02 (1) insofar as the action was dismissed and the appellant ordered to pay the costs;

2.	annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 8 November 2001 in Case R 652/2001-1;

3.	order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs of the proceedings at both instances.

Pleas in law and main arguments:

Infringement of Community law in the application of the provisions of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (2) and Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark: (3)

—

The judgment under appeal is based on a misapplication of Article 7(1)(c) of Regulation No 40/94. It is founded on the finding made at the previous instances that the combination of letters ‘TDI’ stands for ‘Turbo Diesel Injection’ or ‘Turbo Direct Injection’. That finding is inconsistent with the substantive provisions of Article 7(1)(c) and was made in breach of the relevant procedural principles. Neither at the previous instances nor in the judgment under appeal were any statements made or reasons given as to where and how ‘TDI’ is used in normal language. The findings as to what terms the relevant public imagines the combination of letters ‘TDI’ to stand for and thus associate with the sign ‘TDI’ remain pure speculation. In the present case, no specific association in the minds of the relevant public between the sign ‘TDI’ and the goods/services in question can be identified. Therefore, the conclusion that registration of the sign ‘TDI’ is precluded by the ground for refusal in Article 7(1)(c) of Regulation No 40/94 constitutes an error in law.

—

The reasons given by the Court of First Instance in the judgment under appeal with respect to the appellant's complaint that the refusal to register the mark TDI infringes Article 7(3) of Regulation No 40/94 likewise constitute errors in law. No reasons are given with respect to the assessment of the degree of market acceptance. There is also a lack of reasoning in the judgment under appeal insofar as it is claimed in general terms that the facts found are insufficient to prove that the mark sought has become distinctive as a result of use in the Member States other than Germany. At no point in the judgment is that claim substantiated.

—

The judgment under appeal and the decisions of OHIM on which it is based infringe the principle of ex proprio motu investigation and the principle derived therefrom that the question whether there are grounds for refusing an application for registration is to be determined on the basis of an examination of the specific circumstances of the individual case. The applicable principle of ex proprio motu investigation entails an obligation of the authority to determine how a word mark will be understood by the relevant public and to substantiate its finding by reference to the specific circumstances of the case. In the present case, that principle has been infringed to the detriment of the appellant.

(1) Not yet published in the European Court Reports.

(2) OJ 1994 L 11, p. 1.

(3) OJ 1995 L 303, p. 1.

30.4.2004

Official Journal of the European Union

C 106/22

Action brought on 23 February 2004 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland.

(Case C-88/04)

(2004/C 106/39)

An action against the United Kingdom of Great Britain and Northern Ireland was brought before the Court of Justice of the European Communities on 23 February 2004 by the Commission of the European Communities, represented by K. Banks, acting as agent, with an address for service in Luxembourg.

The Applicant claims that the Court should:

—

declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 (1) on the harmonisation of certain aspects of copyright and related rights in the information society, or in any event by failing to notify all the necessary provisions to the Commission, the United Kingdom has failed to fulfil its obligations under article 13 of the Directive;

—	order the United Kingdom to pay the costs of this action.

Pleas in law and main arguments:

The period within which the directive was to be implemented expired on 22 December 2002.

(1) OJ 2001 L 167, p. 10.

30.4.2004

Official Journal of the European Union

C 106/22

Appeal brought on 26 February 2004 by British Airways plc against the judgment delivered on 17 December 2003 by the First Chamber of the Court of First Instance of the European Communities in case T-219/99 between British Airways plc and the Commission of the European Communities, supported by Virgin Atlantic Airways Ltd.

(Case C-95/04 P)

(2004/C 106/40)

An appeal against the judgment delivered on 17 December 2003 by the First Chamber of the Court of First Instance of the European Communities in case T-219/99 (1) between British Airways plc and the Commission of the European Communities, supported by Virgin Atlantic Airways Ltd, was brought before the Court of Justice of the European Communities on 26 February 2004 by British Airways plc (hereinafter BA), established in Waterside (United Kingdom), represented by R. Subiotto and J. Temple Lang, solicitors, R. O'Donoghue and W. Wood QC, barristers.

The Appellant claims that the Court should:

—	set aside the judgment in case T-219/99 British Airways plc v. Commission in whole or in part;

—	annul or reduce the amount of BA's fine by an amount considered appropriate by the Court of Justice in the exercise of its discretion; and

—	take any other measure that the Court of Justice deems appropriate.

Pleas in law and main arguments:

The Court of First Instance Erred In Law By Applying The Wrong Test To Assess The Exclusionary Character Of BA's Commissions

The Court of First Instance held that BA's commissions were ‘fidelity-building’, and, therefore, exclusionary. However, the Court of First Instance's ‘fidelity-building’ test cannot distinguish between customers' fidelity secured by abusive exclusionary behaviour and customers' fidelity resulting from legitimate price competition. If accepted, the Court of First Instance's ‘fidelity-building’ test would create significant legal uncertainty as to the scope of legitimate price competition, and thus create disincentives for firms to engage in legitimate price competition, frustrating the basic purpose of Community competition law.

The Court of First Instance Erred In Law By Disregarding The Evidence That BA's Commissions Had No Material Effect On Competitors

BA's second ground of appeal concerns the Court of First Instance's findings on the effects of BA's commissions. Clear evidence showed that rivals' shares of sales increased during the period of the alleged infringement and that BA's share of travel agents' sales declined. The Court of First Instance dismissed this evidence, arguing that BA's conduct ‘cannot fail to have had’ an effect on its rivals and that BA's competitors would have done even better, but for its conduct. The Court of First Instance added that where a dominant undertaking implements a practice tending to oust its competitors, the fact that the result is not achieved is not sufficient to prevent a finding of abuse.

This reasoning is defective. First, competition law requires the Court to examine the actual or likely effects of allegedly abusive conduct. This was certainly approproiate in this case, since BA's conduct had lasted sufficiently long to assess its effects. Second, there was clear evidence in the present case that BA's practices had no material effect. BA does not suggest that actual effects need to be demonstrated in every case. But it is clearly a different matter to suggest, as the Court of First Instance does, that clear evidence pointing to a lack of any effect can be disregarded. The Court of First Instance's findings in this regard would, if accepted, mean that incentive practices such as those at issue would be per se abusive, irrespective of their actual or likely effects. This is not the law under Article 82 EC, which requres an examination of ‘all the circumstances’ in order to assess whether rivals' opportunities were materially limited.

The Court of First Instance Erred In Law By Failing To Consider Whether There Was ‘Prejudice To Consumers’ Under Article 82(b) EC

Conduct which ‘limits’ the market of competitors of a dominant company is unlawful under Article 82(b) EC only if it causes ‘prejudice to consumers’. Article 82(b) EC clearly protects competition and consumers, not competitors. The Court of First Instance erred in law by its failure to consider whether BA's commissions for successful travel agents harmed consumers. The judgment under appeal makes no analysis of this requirement, but only addresses the situation of BA's competitors.

Even If BA's Commissions Had In Principle Been Capable of ‘Limiting’ Rivals' Markets, The Court of First Instance Erred In Law By Failing to Analyse These Effects

BA's fourth ground of appeal needs to be considered only if, contrary to its first, second and third grounds of appeal, its incentives schemes were in principle capable of limiting rivals' markets to the prejudice of consumers, contrary to Article 82(b) EC. The judgment under appeal fails to analyse or quantify the extent to which BA's commissions limited rivals' markets in two respects: (i) the Court of First Instance wrongly treated the MAs and PRS as having the same effect, since each had different terms and conditions and was in operation for different periods, and at least one of them (the PRS) could not have been exclusionary on any basis; (ii) the Court of First Instance failed to examine ‘all the circumstances’ to assess how BA's rivals were affected by its commission schemes.

The Court of First Instance Misapplied Article 82(c) EC In Relation To The Discriminatory Effect Of BA's Commissions

The Court of First Instance misapplied Article 82(c) EC in finding that BA's commissions discriminated between travel agents. Article 82(c) EC does not require that all customers benefit from the same prices and terms and conditions. It proscribes differences only if: (i) the compared transactions are equivalent; (ii) the conditions applied to the transactions are different; and (iii) one trading party suffers a competitive disadvantage vis-à-vis the other trading party as a result of such differences. Instead of applying the express wording of Article 82(c) EC, the Court of First Instance simply assumed that the mere fact that two agents receive different rates of commission ‘naturally’ had a material impact on their abililty to compete with one another.

(1) OJ C 20, 22.01.2000, p. 21.

30.4.2004

Official Journal of the European Union

C 106/24

Action brought on 26 February 2004 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland.

(Case C-98/04)

(2004/C 106/42)

An action against the United Kingdom of Great Britain and Northern Ireland was brought before the Court of Justice of the European Communities on 26 February 2004 by the Commission of the European Communities, represented by M. Shotter and F. Simonetti, acting as agents, with an address for service in Luxembourg.

The Applicant claims that the Court should:

—

declare that the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Articles 2(1) and 4 of Council Directive 85/337/EEC, of 27 June 1985, on the assessment of the effects of certain public and private projects on the environment (1), as amended by Council Directive 97/11/EC (2); and

—	order the United Kingdom of Great Britain and Northern Ireland to pay the costs.

Pleas in law and main arguments:

The Commission received a complaint concerning the practice in the United Kingdom of issuing Lawful Development Certificates (LDCs) to confirm that a particular use of land is lawful for planning control purposes. A LDC is granted if it can be proven that activity on the land has been continued without enforcement action having been taken against the operator for more than a set period of time.

The Commission considers that the regime being applied in the United Kingdom, whereby a person may apply to a planning authority to issue a LDC concerning a project within the meaning of Council Directive 85/337/EEC, as amended by Council Directive 97/11/EC (hereinafter ‘the EIA Directive’), means that the United Kingdom has failed to ensure the correct application of its obligations under Articles 2(1) and 4 of that Directive. The issuing of LDCs effectively by-passes the development consent procedure and as a result the requirements of the EIA Directive.

The United Kingdom has not disputed that LDCs can be issued for projects falling within the scope of the EIA Directive. This means that projects covered by Article 4 of that Directive could thereby escape the application of the requirements of Article 2(1) of the EIA Directive, namely that projects likely to have significant effects on the environment are made subject to development consent and an assessment with regard to their effects.

A system of tacit authorisation cannot be compatible with the requirements of the EIA Directive, which prescribes an assessment procedure to precede the grant of authorisation. National authorities are therefore required to examine individually every request for authorisation.

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

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

30.4.2004

Official Journal of the European Union

C 106/24

Action brought on 27 February 2004 by the Kingdom of Sweden against the Commission of the European Communities

(Case C-102/04)

(2004/C 106/43)

An action against the Commission of the European Communities was brought before the Court of Justice of the European Communities on 27 February 2004 by the Kingdom of Sweden, represented by A. Kruse, acting as Agent, with an address for service in Sweden.

The Kingdom of Sweden claims that the Court should:

—	annul Commission Directive 2003/112/EC (1) of 1 December 2003 amending Council Directive 91/414/EEC (2) to include paraquat as an active substance,

—	order the Commission to pay the Kingdom of Sweden's costs.

Pleas in law and main arguments

The Commission adopted Directive 2003/112/EC on 1 December 2003. By that directive, paraquat was included as an active substance in Annex I to Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market.

By adopting the directive the Commission has disregarded Articles 6 and 174 EC, Article 5 of Council Directive 91/414/EEC and Article 7(1) of Commission Regulation (EEC) No 3600/92 of 11 December 1992 laying down the detailed rules for the implementation of the first stage of the programme of work referred to in Article 8(2) of Council Directive 91/414/EEC concerning the placing of plant protection products on the market.

In adopting the directive the Commission has clearly gone beyond the limits of its discretionary powers in that it has failed to apply the principle of caution when assessing and dealing with the risk posed by paraquat both to human and to animal health. Its failure to apply the principle of caution has in turn made it impossible to ensure the high level of protection required by the EC Treaty and in Directive 91/414/EEC. In disregarding the need for a high level of protection, the Commission must also be considered not to have fulfilled the requirements of environmental protection and the principle of integration laid down in the EC Treaty. The Commission has thus breached Articles 6 and 174(2) EC and Article 5 of Directive 91/414/EEC. The Commission has also mishandled this matter by failing to have regard for available published data on paraquat and the risks associated with that substance. In so doing it has breached Articles 174(3) EC and Article 5(1) of Directive 91/414/EEC and Article 7(1) of Commission Regulation (EEC) No 3600/92.

(1) OJ L 321, 6.12.2003, p. 32.

(2) OJ L 230, 19.8.1991, p. 1.

30.4.2004

Official Journal of the European Union

C 106/25

Appeal brought on 1 March 2004 by Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied (FEG) against the judgment of 16 December 2003 by the Court of First Instance (First Chamber) in Joined Cases T–5/00 and T-6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie BV v Commission of the European Communities, supported by CEF City Electrical Factors BV and CEF Holdings Ltd.

(Case C-105/04 P)

(2004/C 106/44)

An appeal was brought before the Court of Justice of the European Communities on 1 March 2004 by Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied (FEG), represented by E.H Pijnacker Hordijk and D.J.M. de Grave, advocaten, against the judgment of 16 December 2003 by the Court of First Instance (First Chamber) in Joined Cases T–5/00 and T-6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie BV v Commission of the European Communities, supported by CEF City Electrical Factors BV and CEF Holdings Ltd.

The appellant claims that the Court should:

(a)

set aside the judgment delivered by the Court of First Instance of the European Communities (First Chamber) on 16 December 2003 in Joined Cases T–5/00 and T-6/00, at least in so far as it relates to Case T-5/00, and, ruling anew, annul in its entirety or at least in part the decision of the Commission of the European Communities of 26 October 1999 addressed to the appellant, or at least decide to reduce substantially the fine imposed on FEG;

(b)	in the alternative: set aside the judgment of 16 December 2003 by the Court of First Instance of the European Communities in Joined Cases T–5/00 and T-6/00, at least in so far as it relates to Case T-5/00, and refer the matter back to the Court of First Instance;

(c)	order the European Commission to pay the costs of the proceedings at first instance and on the appeal.

Pleas in law and main arguments:

In the first place, the Court of First Instance infringed general principles of Community law, in particular the principle that proceedings must be concluded within a reasonable period, in finding that the excessively long duration of the administrative procedure did not constitute a ground for annulling the contested decision. The view taken by the Court of First Instance with regard to what constitutes a reasonable period within which to conclude proceedings is at variance with the case-law of the EC Court of Justice and of the Court of First Instance itself.

In this regard the Court of First Instance misconstrued the case-law of the European Court of Human Rights which it had cited in support of its view.

Second, the Court of First Instance infringed the general principles of Community law, in particular the principle of the presumption of innocence and the principle that reasons must be given, by stating in its judgment (i) that the period prior to notification of the statement of objections – and thus also the period between dispatch of the warning letter of 16 September 1991 and the statement of objections – had to be left out of consideration in the assessment of the reasonableness of the period, and (ii) that no significance was to be attached to exculpatory evidence dating from the period after the warning letter. These positions taken by the Court of First Instance are internally contradictory and that Court failed to provide any valid grounds to justify such contradiction. In addition, the failure to take account of the abovementioned exculpatory evidence without further explanation constitutes a serious deficiency of reasoning on the part of the Court of First Instance and undermines the principle of the presumption of innocence.

Third, the Court of First Instance infringed Article 81(1) EC and the principle that reasons must be given by treating as admissible the evidence submitted by the Commission concerning the duration of the alleged collective exclusive dealing agreements. Of significance in this regard are (i) the fact that no substantive grounds are given; (ii) the fact that, precisely in view of the lack of any evidence of a breach over the periods from 12 March 1986 to 28 February 1989 and from 18 November 1991 to 25 February 1994, any judicial finding that a breach occurred over those periods ought to have been made subject to more stringent requirements as to justificatory reasoning; and (iii) the fact that, in its examination of the evidence submitted by the Commission, the Court of First Instance took no account whatever of the aspect of duration.

Fourth, the Court of First Instance infringed the principle that reasons must be given, in particular by failing to address, or by inaccurately reproducing, arguments set out by FEG. The reasoning of the judgment of the Court of First Instance with regard to the alleged infringements by FEG in the area of pricing points to such serious shortcomings that section II.D of the judgment cannot stand. Furthermore, in a number of sections the Court of First Instance breached Article 81(1) EC by defining an agreement as being mutually agreed actual conduct without also establishing that the agreement had been translated into de facto conduct.

Fifth, the Court of First Instance infringed Community law, or at least misapplied established Community case-law, by attributing to FEG the alleged extensions of the collective exclusive dealing arrangements to suppliers outside the Netherlands Association of Exclusive Representatives in the Electrotechnical Sector (NAVEG). The Court of First Instance thereby disregarded the fact that FEG did not play any separate determinant role in bringing about the conduct alleged. The Court's reasoning is also incomprehensible in view of the fact that it assumes FEG's direct involvement on the basis of divergent joint action by separate groups of members, notwithstanding the facts (i) that FEG was not involved in giving rise to or implementing the action; (ii) that the Court did not examine further whether any potential agreement on the part of FEG with the joint action was expressed through its conduct; and (iii) that the Commission's file contained explicit evidence to the contrary which demonstrated that FEG had not been involved in any conscious and deliberate conduct.

Sixth, the Court of First Instance infringed and/or misapplied Community law, in particular Article 15(2) of Regulation No 17/62, and in any event infringed and/or misapplied generally applicable principles of Community law in regard to stating reasons for (judicial) decisions and in regard to proportionality, in its determination of the fine by concluding that the arguments adduced by FEG and TU against the Commission's determination of the duration of the infringements in the decision had to be rejected.

Seventh, the Court of First Instance infringed and/or misapplied Community law, in particular Article 15(2) of Regulation No 17/62, and in any event infringed and/or misapplied generally applicable principles of Community law in regard to stating reasons for (judicial) decisions and in regard to proportionality, in its determination of the fine by concluding that the applicants had not adduced a single element that would justify the Court of First Instance, in the exercise of its unlimited jurisdiction, in considering granting a further reduction in the fine imposed on FEG. The Court of First Instance, however, does not discuss the fact that it, unlike the Commission in the decision, makes the Commission entirely responsible for the exceptionally long duration of the procedure. Furthermore, the extremely small reduction in the fine which the Commission itself imposed does not allay the harm suffered by FEG as a result of that exceptionally long duration.

30.4.2004

Official Journal of the European Union

C 106/27

Appeal brought on 1 March 2004 by Strintzis Lines Shipping SA against the judgment delivered on 11 December 2003 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-65/99 between Strintzis Lines Shipping SA and the Commission.

(Case C-110/04 P)

(2004/C 106/46)

An appeal against the judgment delivered on 11 December 2003 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-65/99 between Strintzis Lines Shipping SA and the Commission was brought before the Court of Justice of the European Communities on 1 March 2004 by Strintzis Lines Shipping SA, represented by Andreas Kalogeropoulos, Konstantinos Adamopoulos and Eliza Petritsi, of the Athens Bar, and Morten Nissen, of the Danish Bar.

The appellant claims that the Court should:

—	annul the decision of the Commission of the European Communities of 9 December 1998 relating to a proceeding pursuant to Article 85 of the EC Treaty (IV/34.466 - Greek Ferries), giving final judgment on that claim in the appellant's favour;

—	in the alternative, if it does not annul the abovementioned Commission decision, annul or in any event significantly reduce the fine of EUR 1.5 million imposed by the Commission on the appellant in Article 2 of that decision, giving final judgment on that claim in the appellant's favour;

—	order the Commission to pay the entire costs incurred by Strintzis both before the Court of First Instance and before the Court of Justice.

Grounds of appeal

First ground of appeal – infringement of Community law by the Court of First Instance which held that the Commission fully obeyed the law as regards both the investigation authorisations which it granted and the manner in which it subsequently conducted the investigation, in particular:

—	the Court of First Instance misapplied Community law in holding that the Commission's decision ordering an investigation enabled European Trust Agencies (ETA) to comprehend the scope of its duty to cooperate with the Commission;

—	the Court of First Instance misinterpreted Community law in holding that ETA had a duty to cooperate in the carrying out of the investigation;

—	the Court of First Instance misapplied and misinterpreted Community law when defining the limits of the Commission's investigatory powers and in holding that the Commission was correct in insisting on carrying out the investigation when it realised that ETA was a separate legal entity;

—	the Court of First Instance misapplied and misinterpreted Community law in its findings as to whether the rights of the defence were respected and whether there was excessive interference on the part of the public authorities in the sphere of ETA's activities.

2.	Second ground of appeal – infringement of Community law by the Court of First Instance which held that Article 85 of the EC Treaty (now Article 81 EC) was applied correctly.

30.4.2004

Official Journal of the European Union

C 106/27

Appeal brought on 3 March 2004 (fax of 25 February 2004) by Adriatica di Navigazione SpA against the judgment delivered on 11 December 2003 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-61/99 between Adriatica di Navigazione SpA and the Commission of the European Communities

(Case C-111/04 P)

(2004/C 106/47)

An appeal against the judgment delivered on 11 December 2003 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-61/99 between Adriatica di Navigazione SpA and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 3 March 2004 by Adriatica di Navigazione SpA, represented by Mario Siragusa and Francesca Maria Moretti.

The appellant claims that the Court should:

1 –

Rectify the judgment in so far as it held that the erroneous definition of the relevant market did not have adverse consequences for Adriatica, recognising that the company was found, without an adequate statement of reasons, to have participated in an infringement which it did not commit in so far as it concerns a trade in which it did not take part;

2 –	Rectify the judgment in so far as it held that the overall conduct of Adriatica, following the meeting of 24 November 1993, was not such as validly to dissociate it for the purposes of exonerating it from liability for the collusive behaviour found to have taken place;

3 –	On the basis of the second plea in law set out below, rectify the judgment in so far as it confirms the duration of the infringement committed by Adriatica, reducing the period of the infringement ascribed to it;

4 –	On the basis of the first plea in law set out below, reduce the penalty imposed on Adriatica by the Court of First Instance;

5 –	On the basis of the first, second and third pleas in law set out below, reduce the penalty imposed on Adriatica in the light of the lesser gravity and shorter duration of the infringement committed by it;

6 –	In the alternative, and independently of the other pleas in law, rectify the judgment in so far as the Court of First Instance erred in calculating the reduction in the fine to be accorded to Adriatica, thereby reducing the fine;

7 –	Order the Commission to pay the costs at first instance and on appeal.

Pleas in law and main arguments:

—	Infringement of Article 81 of the Treaty and erroneous application of the law in respect of the failure to assess the consequences, in Adriatica's case, of the incorrect definition of the relevant market given by the Commission;

—	Infringement of Article 81 of the Treaty and erroneous application of the law in the assessment of the existence of the requirements for the dissociation of Adriatica from the infringement;

—	Infringement of Article 81 of the Treaty and Article 19 of Regulation No 4056/86 (1) in determining the duration and gravity of the infringement ascribable to Adriatica;

—	In the alternative, infringement of Article 81 of the Treaty and Article 19 of Regulation No 4056/86 and a failure adequately to state reasons in determining the fine to be imposed on Adriatica.

(1) OJ 1986 L 378 of 31.12.1986, p. 4.

30.4.2004

Official Journal of the European Union

C 106/28

Appeal brought on 3 March 2004 by Marlines SA against the judgment delivered on 11 December 2003 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-56/99 between Marlines SA and the Commission.

(Case C-112/04 P)

(2004/C 106/48)

An appeal against the judgment delivered on 11 December 2003 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-56/99 between Marlines SA and the Commission was brought before the Court of Justice of the European Communities on 3 March 2004 by Marlines SA, represented by Dimitrios Papatheofanous and Adamantia Anagnostou, of the Athens Bar.

The appellant claims that the Court should:

—	allow the appeal;

—	set aside the contested judgment;

—	make a decision in accordance with the law;

—	order the Commission to pay the costs before both courts.

Grounds of appeal

1.	Breach of the duty to state reasons.

2.	Failure to observe the rules of logic and lessons derived from common experience.

3.	Unreasoned (or implicit) rejection of the applicant's request that witnesses be examined.

30.4.2004

Official Journal of the European Union

C 106/28

Appeal brought on 3 March 2004 by Technische Unie BV against the judgment of 16 December 2003 by the Court of First Instance (First Chamber) in Joined Cases T-5/00 and T-6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie BV v Commission of the European Communities, supported by CEF City Electrical Factors BV and CEF Holdings Ltd.

(Case C-113/04 P)

(2004/C 106/49)

An appeal was brought before the Court of Justice of the European Communities on 3 March 2004 by Technische Unie BV, represented by P.V.F. Bos and C. Hubert, advocaten, against the judgment of 16 December 2003 delivered by the Court of First Instance (First Chamber) in Joined Cases T–5/00 and T-6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie BV v Commission of the European Communities, supported by CEF City Electrical Factors BV and CEF Holdings Ltd.

The appellant claims that the Court should:

(1)

set aside the judgment of 16 December 2003 by the Court of First Instance of the European Communities in Joined Cases T–5/00 and T-6/00, at least in so far as it relates to Case T-6/00, and, regard being had to the form of order sought under (2), dispose of the case itself or, in the alternative, set the judgment aside and refer the matter back to the Court of First Instance for further consideration;

(2)	annul in its entirety, or at least in part, the decision of the European Commission of 26 October 1999 addressed to Technische Unie, or at least, ruling afresh, decide to reduce substantially the fine imposed on the appellant; and

(3)	order the European Commission to pay all costs of the proceedings, including those of the proceedings before the Court of First Instance.

Pleas in law and main arguments:

In the first place, the Court of First Instance infringed EC law and/or the European Convention on Human Rights, and at any rate provided incomprehensible reasoning in that regard, in ruling that the fact that the period within which the procedure was concluded went beyond what was reasonable could not justify annulment of the Commission decision or an additional reduction in the fine.

Second, the Court of First Instance breached Community law, inasmuch as there is internal inconsistency and thus a lack of proper reasoning with regard to the equivocal manner in which it attached significance to the date on which the warning letter was issued.

Third, the Court of First Instance demonstrated misconstruction of the law, or at any rate provided incomprehensible reasoning, in ruling that the Commission would have had good grounds for finding Technische Unie liable for the infringements referred to in Articles 1 and 2 of the decision.

Fourth, the Court of First Instance demonstrated misconstruction of the law, or at any rate provided defective reasoning, in treating earlier the breaches referred to in Articles 1 and 2 of the decision as (continuing) breaches over the periods taken into account and in subsequently taking into account, for the duration of the breach referred to in Article 3 of the decision, the same periods as those which related to the breaches mentioned earlier.

Fifth, the Court of First Instance demonstrated misconstruction of the law, or at any rate provided inadequate reasoning, in not allowing an additional reduction in the fine, notwithstanding the misappraisal of the duration of the breaches and the infringement of the principle that proceedings must be concluded within a reasonable period.

30.4.2004

Official Journal of the European Union

C 106/29

Action brought on 3 March 2004 by the Commission of the European Communities against the Federal Republic of Germany

(Case C-114/04)

(2004/C 106/50)

An action against the Federal Republic of Germany was brought before the Court of Justice of the European Communities on 3 March 2004 by the Commission of the European Communities, represented by Dr Bernhard Schima of the Legal Service of the Commission, acting as Agent, with an address for service in Luxembourg.

The applicant claims that the Court should:

1.	declare that by failing to give parallel importers an appropriate period in which to liquidate their stock upon the withdrawal of a licence for a plant protection reference product the Federal Republic of Germany has failed to fulfil its obligations under Article 28 EC;

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

Pleas in law and main arguments

The Commission is of the opinion that the measures instituted by the Biologische Bundesanstalt (Federal Biological Agency) are not compatible with the principle of free movement of goods laid down in Articles 28 to 30 EC and the relevant case-law.

The withdrawal of the licence for the reference product without the provision of any period for liquidation of current stocks held by the parallel importers, with the result that the parallel imported products could no longer be sold, constituted an obstacle to the free movement of goods as laid down in the Court’s case-law and therefore was fundamentally incompatible with Article 28 EC.

A parallel importer needs to purchase large quantities of the relevant product abroad in order to offer the product for sale on the market of the importing State at a competitive price and to satisfy his clients’ orders. For this reason it is unavoidable that the parallel importer should hold a certain amount of stock. The automatic disappearance of the possibility of selling that stock after the withdrawal of the licence for the reference product undoubtedly amounts to a quantitative restriction on imports.

This obstacle to trade in respect of the parallel import of plant protection products is not justifiable, since the withdrawal of the licence was not made on one of the grounds laid down in Article 30 EC and in particular not for reasons of public health.

30.4.2004

Official Journal of the European Union

C 106/31

Action brought on 4 March 2004 by the Commission of the European Communities against the Italian Republic

(Case C-119/04)

(2004/C 106/54)

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 4 March 2004 by the Commission of the European Communities, represented by Enrico Traversa and Laura Pignatoro-Nolin, acting as Agents.

The applicant claims that the Court should:

—

Declare that, by not taking the measures necessary to comply with the judgment of the Court of Justice of the European Communities of 26 June 2001 in Case C-212/99 concerning recognition of the acquired rights of former foreign-language assistants in universities, the Italian Republic has failed to fulfil its obligations under Article 39 of the EC Treaty;

—	Order the Italian Republic to pay to the Commission a penalty payment of EUR 309,750 per day of delay in complying with the judgment in Case C-212/99 from the day on which the judgment in the present case is delivered until the day on which the judgment in Case C-212/99 is complied with;

—	Order the Italian Republic to pay the costs.

Pleas in law and main arguments:

The present action concerns the failure of the Italian Republic to comply with the judgment of 26 June 2001 in Case C-212/99 in so far as it has not adopted adequate measures since the delivery of that judgment to ensure recognition of the acquired rights of former foreign-language assistants who became employed language teachers, whereas those rights have been recognised in respect of the majority of Italian employees.

The Italian Republic has provided no specific data or schedule enabling a determination to be made as to whether remuneration of those former assistants is equivalent to that of Italian employees with the same experience.

In those circumstances, the Commission must declare that the Italian Republic has not taken the measures necessary to comply with that judgment of the Court, thereby failing to fulfil the obligation laid down by Article 228(1) EC.

Pursuant to Article 228(2) EC, the Commission asks that the Court impose on the Italian Republic a penalty payment of EUR 309,750 for each day's delay in complying with the judgment of the Court in Case C-212/99, from the day on which the Court delivers its judgment in the present case.

30.4.2004

Official Journal of the European Union

C 106/32

Appeal brought on 5 March 2004 by Minoan Lines SA against the judgment delivered on 11 December 2003 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-66/99 between Minoan Lines SA and the Commission.

(Case C-121/04 P)

(2004/C 106/56)

An appeal against the judgment delivered on 11 December 2003 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-66/99 between Minoan Lines SA and the Commission was brought before the Court of Justice of the European Communities on 5 March 2004 by Minoan Lines SA, represented by Ioannis and Emmanouil Drillerakis and Nikolaos Korogiannakis, of the Athens Bar.

The appellant claims that the Court should:

—	set aside the judgment of the Court of First Instance of 11 December 2003 in Case T-66/99 Minoan Lines SA v Commission of the European Communities;

—	annul Commission Decision 1999/271/EC (1) of 9 December 1998 relating to a proceeding pursuant to Article 85 of the EC Treaty (now Article 81) (IV/34.466 - Greek Ferries);

—	in the alternative, reduce the fine of EUR 3 260 000 which the Commission imposed on the appellant;

—	order the Commission to pay the appellant's costs in respect of the proceedings both before the Court of First Instance and before the Court of Justice.

Grounds of appeal

—	Infringement by the Court of First Instance of Article 14 of Regulation No 17, of Article 18 of Regulation No 4056/86 and of general principles of law.

—	The Court of First Instance wrongly held that ETA's acts were correctly attributed to Minoan Lines.

—	The Court of First Instance wrongly dismissed the claim for annulment or reduction of the fine imposed on the appellant.

(1) OJ No L 109, 27.4.1999, p. 24.

30.4.2004

Official Journal of the European Union

C 106/32

Reference for a preliminary ruling by the Oberlandesgericht Oldenburg by order of that court of 4 February 2004 in the case of Industrias Nucleares do Brasil S.A. and Siemens AG against UBS AG

(Case C-123/04)

(2004/C 106/57)

Reference has been made to the Court of Justice of the European Communities by order of the Oberlandesgericht Oldenburg of 4 February 2004, received at the Court Registry on 8 March 2004, for a preliminary ruling in the case of Industrias Nucleares do Brasil S.A. and Siemens AG against UBS AG on the following questions:

1.	Do the terms ‘processing, conversion or shaping’ in the first paragraph of Article 75 of the EAEC Treaty also encompass the enrichment of uranium?

Does an undertaking having its seat outside the territory of the EAEC Treaty pursue all or any of its activities in the territory of the Euratom Community within the meaning of Article 196 (b) of the EAEC Treaty if it maintains with an undertaking having its seat in the territory of the Euratom Community a commercial relationship for

(a)	the supply of raw material for the production of enriched uranium by, and the procurement of enriched uranium from, the undertaking having its seat in the territory of the Euratom Community

(b)	the storage thereof with another undertaking having its seat in the territory of the Euratom Community?

(a)	Does Article 75(c) of the EAEC Treaty require the material supplied for processing, conversion or shaping and the material subsequently returned to be identical in substance, apart from the physical changes associated with those processes?

(b)	Or is it sufficient for the processed material to be commensurate in terms of quantity and quality with the material supplied?

(c)	Is the application of Article 75(c) of the EAEC Treaty precluded where the material returned cannot be attributed to any material supplied by the consignee?

(d)	Is the application of Article 75(c) of the EAEC Treaty precluded where the undertaking carrying out the process acquires title to the raw material on delivery and therefore has to transfer title to the enriched uranium back to the other contracting party on completion of the process?

(a)	Is the application of Article 75 of the EAEC Treaty precluded if the persons or undertakings concerned do not fulfil their duty to notify the Euratom Supply Agency under the second paragraph of Article 75 of the EAEC Treaty?

(b)	Can breach of the duty to notify the Euratom Supply Agency under the second paragraph of Article 75 of the EAEC Treaty be remedied by the persons or undertakings concerned subsequently fulfilling their duty to notify or by the Agency subsequently becoming cognisant in some other way?

(a)	Is an agreement or contract within the meaning of Article 73 of the EAEC Treaty invalid if the contracting parties do not obtain the prior consent of the European Commission required thereunder?

(b)	If so, can the invalidity of the transaction be remedied by the persons or undertakings concerned subsequently obtaining such consent or by the institutions of the Euratom Community failing to take action after becoming cognisant in some other way?

(a)	Is the disposal of materials within the meaning of Article 57 (1) of the EAEC Treaty prohibited if the producer does not fulfil his obligation to make an offer to the Euratom Supply Agency under the second sentence of Article 57 (2) of the EAEC Treaty?

(b)

Can breach of the duty to offer materials to the Euratom Supply Agency under the second sentence of Article 57 (2) of the EAEC Treaty be remedied by the producer subsequently fulfilling his duty to make an offer or by the Agency subsequently becoming cognisant in some other way and not exercising its right of option?

7.	Does the concept of production in Article 86 of the EAEC Treaty also encompass the enrichment of uranium?

8.	Are uranium and light-enriched uranium ‘source materials’ within the meaning of the last phrase of Article 197 (1) of the EAEC Treaty?

(a)	Can civil-law title under Paragraph 903 of the Bürgerliches Gesetzbuch (German Civil Code, hereinafter the ‘BGB’) be acquired and transferred in respect of materials that have become the property of the Euratom Community under the first sentence of Article 86 of the EAEC Treaty?

(b)	Does the unlimited right of use and consumption afforded to holders of rights under Article 87 of the EAEC Treaty exist as a property or quasi-property interest sui generis alongside rights in rem under the Bürgerliches Gesetzbuch of the Federal Republic of Germany?

10.	Does an undertaking pursue any of its activities in the territories of the Member States of the Euratom Community within the meaning of Article 196 (b) of the EAEC Treaty if it acquires or disposes of enriched uranium stored there?

11.	Does Article 73 of the EAEC Treaty also apply mutatis mutandis to agreements concerning enriched uranium stored within the territory of the Euratom Community where all of the parties are nationals of third States?

30.4.2004

Official Journal of the European Union

C 106/34

Reference for a preliminary ruling by the Oberlandesgericht Oldenburg, by order of that court of 4 February 2004 in the case of Industrias Nucleares do Brasil S.A. and Siemens AG against Texas Utilities Electric Corporation

(Case C-124/04)

(2004/C 106/58)

1.	Do the terms ‘processing, conversion or shaping’ in the first paragraph of Article 75 of the EAEC Treaty also encompass the enrichment of uranium?

(a)	the supply of raw material for the production of enriched uranium by, and the procurement of enriched uranium from, the undertaking having its seat in the territory of the Euratom Community

(b)	the storage thereof with another undertaking having its seat in the territory of the Euratom Community?

(a)	Does Article 75(c) of the EAEC Treaty require the material supplied for processing, conversion or shaping and the material subsequently returned to be identical in substance, apart from the physical changes associated with those processes?

(b)	Or is it sufficient for the processed material to be commensurate in terms of quantity and quality with the material supplied?

(c)	Is the application of Article 75(c) of the EAEC Treaty precluded where the material returned cannot be attributed to any material supplied by the consignee?

(d)	Is the application of Article 75(c) of the EAEC Treaty precluded where the undertaking carrying out the process acquires title to the raw material on delivery and therefore has to transfer title to the enriched uranium back to the other contracting party on completion of the process?

(a)	Is the application of Article 75 of the EAEC Treaty precluded if the persons or undertakings concerned do not fulfil their duty to notify the Euratom Supply Agency under the second paragraph of Article 75 of the EAEC Treaty?

(b)	Can breach of the duty to notify the Euratom Supply Agency under the second paragraph of Article 75 of the EAEC Treaty be remedied by the persons or undertakings concerned subsequently fulfilling their duty to notify or by the Agency subsequently becoming cognisant in some other way?

(a)	Is an agreement or contract within the meaning of Article 73 of the EAEC Treaty invalid if the contracting parties do not obtain the prior consent of the European Commission required thereunder?

(b)	If so, can the invalidity of the transaction be remedied by the persons or undertakings concerned subsequently obtaining such consent or by the institutions of the Euratom Community failing to take action after becoming cognisant in some other way?

(a)	Is the disposal of materials within the meaning of Article 57 (1) of the EAEC Treaty prohibited if the producer does not fulfil his obligation to make an offer to the Euratom Supply Agency under the second sentence of Article 57 (2) of the EAEC Treaty?

(b)

7.	Does the concept of production in Article 86 of the EAEC Treaty also encompass the enrichment of uranium?

8.	Are uranium and light-enriched uranium ‘source materials’ within the meaning of the last phrase of Article 197 (1) of the EAEC Treaty?

(a)	Can civil-law title under Paragraph 903 of the Bürgerliches Gesetzbuch (German Civil Code, hereinafter the ‘BGB’) be acquired and transferred in respect of materials that have become the property of the Euratom Community under the first sentence of Article 86 of the EAEC Treaty?

(b)	Does the unlimited right of use and consumption afforded to holders of rights under Article 87 of the EAEC Treaty exist as a property or quasi-property interest sui generis alongside rights in rem under the Bürgerliches Gesetzbuch of the Federal Republic of Germany?

10.	Does an undertaking pursue any of its activities in the territories of the Member States of the Euratom Community within the meaning of Article 196 (b) of the EAEC Treaty if it acquires or disposes of enriched uranium stored there?

11.	Does Article 73 of the EAEC Treaty also apply mutatis mutandis to agreements concerning enriched uranium stored within the territory of the Euratom Community where all of the parties are nationals of third States?

30.4.2004

Official Journal of the European Union

C 106/35

Reference for a preliminary ruling by the College van Beroep voor het bedrijfsleven (Netherlands), by order of that court of 18 February 2004, in the case of Heineken Brouwerijen B.V. v Hoofdproductschap Akkerbouw,

(Case C-126/04)

(2004/C 106/59)

Reference has been made to the Court of Justice of the European Communities by order of the College van Beroep voor het bedrijfsleven (Administrative Court for Trade and Industry) (Netherlands), received at the Court Registry on 8 March 2003, for a preliminary ruling in the case of Heineken Brouwerijen B.V. against Hoofdproductschap Akkerbouw (Central Board for Agricultural Products) on the following questions:

Are Council Regulations Nos 1269/1999 (1) and 822/2001 (2), which fix Community tariff quotas only in respect of the importation of barley for the manufacture of beer aged in tanks containing beechwood, valid in the light of the prohibition on discrimination between producers laid down in the second subparagraph of Article 34(2) of the Treaty?

If the abovementioned regulations are invalid, does Article 10(2) of Council Regulation (EEC) No 1766/92 (3) of 30 June 1992 on the common organisation of the market in cereals, in conjunction with Commission Regulation (EC) No 2023/2001 (4) of 15 October 2001 fixing the import duties in the cereals sector, nevertheless require that import duty be charged on high-graded barley falling within CN code 1003 00 which is intended for the production of beer made from malt?

(1) Council Regulation (EC) No 1269/1999 of 14 June 1999 opening a Community tariff quota for barley falling within CN code 100300 (OJ L 151 of 18 June 1999, p. 1).

(2) Council Regulation (EC) No 822/2001 of 24 April 2001 opening a Community tariff quota for barley for malting falling within CN code 100300 (OJ L 120 of 28 April 2001, p. 1).

(3) Council Regulation (EEC) No 1766/92 of 30 June 1992 on the common organisation of the market in cereals (OJ L 181 of 1 July 1992, p. 21).

(4) Commission Regulation (EC) No 2023/2001 of 15 October 2001 fixing the import duties in the cereals sector (OJ L 273 of 16 October 2001, p. 18).

30.4.2004

Official Journal of the European Union

C 106/35

Reference for a preliminary ruling by the High Court of Justice (England & Wales), Queen's Bench Division by order of that court dated 18 November 2003, amended on 27 February 2004, in the case of Master Declan O'Byrne against Aventis Pasteur MSD Ltd and Aventis Pasteur SA.

(Case C-127/04)

(2004/C 106/60)

Reference has been made to the Court of Justice of the European Communities by an order of the High Court of Justice (England & Wales), Queen's Bench Division, dated 18 November 2003, amended on 27 February 2004, which was received at the Court Registry on 8 March 2004, for a preliminary ruling in the case of Master Declan O'Byrne against Aventis Pasteur MSD Ltd and Aventis Pasteur SA on the following questions:

On a true interpretation of Article 11 of the Council Directive (1), when a product is supplied pursuant to a contract of sale by a French manufacturer to its wholly owned English subsidiary, and then by the English company to another entity, is the product put into circulation:

(a)	when it leaves the French company; or

(b)	when it reaches the English company; or

(c)	when it leaves the English company; or

(d)	when it reaches the entity receiving the product from the English company?

Where proceedings asserting rights conferred on the claimant pursuant to the Council Directive in respect of an allegedly defective product are instituted against one company (A) in the mistaken belief that A was the producer of the product when in fact the producer of the product was not A but another company (B), is it permissible for a Member State under its national laws to confer a discretionary power on its courts to treat such proceedings as ‘proceedings against the producer’ within the meaning of Article 11 of the Council Directive?

Does Article 11 of the Council Directive, correctly interpreted, permit a Member State to confer a discretionary power on a court to allow B to be substituted for A as a defendant to proceedings of the kind referred to in Question 2 above (‘the relevant proceedings’) in circumstances where:

(a)	the period of 10 years referred to in Article 11 has expired;

(b)	the relevant proceedings were instituted against A before the 10 year period expired; and

(c)	no proceedings were instituted against B before the expiry of the 10 year period in respect of the product which caused the damage alleged by the claimant?

(1) Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (OJ L 210, 07.08.1985, p. 29).

30.4.2004

Official Journal of the European Union

C 106/36

Reference for a preliminary ruling by the Conseil d'Etat (Belgium) Administrative Division, by judgment of that court of 25 February 2004 in the case Espace Trianon SA and Société wallonne de location-financement SA (SOFIBAIL) against the Office communautaire et régional de la formation professionelle et de l'emploi (FOREM)

(Case C-129/04)

(2004/C 106/62)

Reference has been made to the Court of Justice of the European Communities by the Conseil d'Etat (Belgium), Administrative Division, of the 25 February 2004, which was received at the Court Registry on 9 March 2004, for a preliminary ruling in the case of Espace Trianon SA and Société wallonne de location-financement SA (SOFIBAIL) against the Office communautaire et régional de la formation professionelle et de l'emploi (FOREM).

The Conseil d'Etat (Belgium), Administrative Division, asks the Court of Justice to give a preliminary ruling on the following questions:

Does Article 1 of Council Directive 89/665/EEC on the Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works (1) contracts preclude a provision of national law, such as the first paragraph of Article 19 of the Laws of the Conseil d'Etat, consolidated on 12 January 1973, which is interpreted as requiring the members of a consortium without legal personality, which, as such, has participated in a procedure for the award of a public contract and has not been awarded that contract, to act together, in their capacity as associates or in their own names, in order to bring an action against the decision awarding the contract?

2)	Would the answer to Question 1 be different if the members of the consortium acted all together, but the action of one of its members is inadmissible?

Does Article 1 of Council Directive 89/665/EEC on the Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts preclude a provision of national law, such as the first paragraph of Article 19 of the Laws of the Conseil d'Etat, consolidated on 12 January 1973, which is interpreted as prohibiting a member of such a consortium from bringing an action individually, either in its capacity as an associate, or in its own name, against the decision awarding the contract?

(1) OJ L 395, 30.12.1989, p. 33.

30.4.2004

Official Journal of the European Union

C 106/38

Action brought on 11 March 2004 by the Commission of the European Communities against the Kingdom of Spain

(Case C-132/04)

(2004/C 106/65)

An action against the Kingdom of Spain was brought before the Court of Justice of the European Communities on 11 March 2004 by the Commission of the European Communities, represented by L. Escobar Guerrero, member of the Commission's Legal Service, and by H. Kreppel, judge at the Social Court, assigned to the Legal Service as a national expert, with an address for service in Luxembourg.

The applicant claims that the Court should:

Declare that, by failing to transpose into its national legislation (or by doing so only partially) Article 2(1) and (2) and Article 4 of Council Directive 89/391/EEC (1) of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work as regards non-civilian personnel in public authorities, the Kingdom of Spain has failed to fulfil its obligations under that directive and under Articles 10 and 249 of the EC Treaty;

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

Pleas in law and main arguments:

The period prescribed for implementing the Directive in national law expired on 31 December 1992.

The object of Directive 89/391/EEC, which is to encourage improvements in the safety and health of workers at work, favours a broad interpretation of its scope. Moreover, it is settled case-law of the Court of Justice that exceptions to the scope of the Directive must be construed restrictively.

The inclusion in the scope of Directive 89/391/EEC of activities carried out in normal conditions by the armed forces, the police and other security forces provides the most favourable position for workers and better respects the principle of proportionality.

(1) OJ 1989 L 183, 29.6.1989, p. 1.

30.4.2004

Official Journal of the European Union

C 106/38

Action brought on 12 March 2004 by Kingdom of Spain against Commission of the European Communities

(Case C-133/04)

(2004/C 106/66)

An action against the Commission of the European Communities was brought before the Court of Justice of the European Communities on 12 March 2004 by the Kingdom of Spain, represented by Enrique Braquehais Conesa, Abogado del Estado, with an address for service in Luxembourg.

The applicant claims that the Court should:

Annul Council Regulation (EC) No 2287/2003 (1) of 19 December 2003 fixing for 2004 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, in so far as it does not allocate quotas to Spain in relation to the fishing possibilities which were distributed before the accession of that State in respect of the North Sea;

2.	Order the defendant to pay the costs.

Pleas in law and main arguments

Breach of the principle of non-discrimination:

Article 166 of the Act of Accession of Spain laid down, so far as concerns access to waters and resources of the Spanish fleet, a transitional period which ended upon the expiry of the period prescribed in Article 8(3) of Regulation (EEC) No 170/83, that is on 31 December 2002. However, the contested regulation in practice maintains the restrictions on access in respect of Spanish vessels to waters in the North Sea and in the Baltic Sea by granting practically no quotas in those waters, thus disregarding the fact that the transitional period has ended and discriminating against Spanish fishermen by comparison with those from other Member States.

Infringement of the Act of Accession of Spain:

The restrictions laid down in that Act are being extended beyond the time-limit laid down in Article 166 thereof by means of the contested regulation and inasmuch as certain quotas have not been allocated to Spanish vessels in the North Sea and in the Baltic Sea.

Breach of the principle of relative stability

The contested regulation radically changes the decisive factors so far as concerns the percentage of catches since Spanish vessels are not on an equal footing with vessels of the other Member States in terms of the application of the principle of relative stability.

(1) OJ L 344 of 31.12.2003, p. 1.

30.4.2004

Official Journal of the European Union

C 106/39

Action brought on 12 March 2004 by Kingdom of Spain against Commission of the European Communities

(Case C-134/04)

(2004/C 106/67)

The applicant claims that the Court should:

Annul Council Regulation (EC) No 2287/2003 (1) of 19 December 2003 fixing for 2004 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, in so far as it does not assign specific quotas to the Spanish fleet in Community waters in the North Sea and the Baltic Sea;

2.	Order the defendant to pay the costs.

Pleas in law and main arguments

Breach of the principle of non-discrimination:

Infringement of the Act of Accession of Spain:

Infringement of Article 20(2) of Regulation (EC) No 2371/2002

The distribution of Community fishing opportunities among the Member States has not been carried out, in the case of existing resources, in accordance with the principle of relative stability and, in the case of new fishing opportunities, having regard to the interests of the Member States, in the present case, those of the Kingdom of Spain.

(1) OJ L 344 of 31.12.2003, p. 1.

30.4.2004

Official Journal of the European Union

C 106/39

Action brought on 12 March 2004 by the Commission of the European Communities against the Kingdom of Spain

(Case C-135/04)

(2004/C 106/68)

An action against the Kingdom of Spain was brought before the Court of Justice of the European Communities on 12 March 2004 by the Commission of the European Communities, represented by Michel Van Beek, Legal Adviser, and Gregorio Valero Jordano, member of its Legal Service, with an address for service in Luxembourg.

The applicant claims that the Court should:

—	declare that, by allowing the practice of hunting migratory birds (woodpigeon – Columba palumbus) in Guipúzcoa, the Kingdom of Spain has failed to fulfil its obligations under Article 7(4) of Council Directive 79/409/EEC (1) of 2 April 1979 on the conservation of wild birds;

—	order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments:

The hunting of returning migratory birds, ‘caza a contrapasa’, in this instance woodpigeon returning to their rearing grounds, entails a failure to comply with Article 7(4) of Directive 79/409.

None of the reasons put forward by the Kingdom of Spain to justify the practice of that type of hunting in Guipúzcoa is acceptable:

—	adoption of a derogation from Article 7(4) on the basis of Article 9(1)(c) of the Directive, since in this case the condition that there is no other satisfactory solution, which must be met for the system of exceptions to apply properly, is not fulfilled.

—	historical and cultural traditions and social convention, since those are not reasons capable of justifying the derogations laid down in Article 9, given that they are not mentioned in that provision.

—	judgment of the Court of Justice in Case 252/85 Commission v France, since the judgment was given in relation to a derogation from Article 8(1) of the Directive relating to hunting methods.

(1) OJ L 103 of 25.4.1979.

30.4.2004

Official Journal of the European Union

C 106/40

Action brought on 15 March 2004 by the Commission of the European Communities against the Italian Republic

(Case C-139/04)

(2004/C 106/70)

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 15 March 2004 by the Commission of the European Communities, represented by Gregorio Valero Jordana and Roberto Amorosi, acting as Agents.

The applicant claims that the Court should:

—

Declare that, by communicating to the Commission only in part the methods used for the preliminary assessment of air quality under Article 3 in respect of the substances covered by Directive 1999/30/EC (1) and by sending after 30 September 2002 the questionnaire adopted by Decision 2001/839/EC (2), providing only certain information in respect of 2001 on the substances covered by Directive 1999/30/EC, as laid down by Article 11(1)(a)(i) and (ii) and Article 11(1)(b) of Directive 1996/62/EC (3), the Italian Republic has failed to fulfil its obligations under Article 11 in conjunction with Article 4(1) of Directive 1996/62/EC and with Directive 1999/30/EC, and its obligations under Article 11 in conjunction with Article 4(1) of Directive 1996/62/EC, with Directive 1999/30/EC and with Article 1 of Decision 2001/839/EC;

—	Order the Italian Republic to pay the costs.

Pleas in law and main arguments:

The treatment of the information communicated by Italy with regard to the Regions and certain of them appears to infringe the obligations stated in the reasoned opinion. To date, however, the Commission has not received information on the methods used for the preliminary assessment of air quality under Article 5 of Directive 96/62/EC in respect of the substances covered by Directive 1999/30/EC from the following regions: Abruzzo, Basilicata, Calabria, Campania, Emilia Romagna, Friuli Venezia Giulia, Lazio, Molise, Puglia, Sardegna, Sicilia, Provincia Autonoma di Bolzano, Umbria and Veneto. Furthermore, the questionnaires in respect of 2001 on the substances covered by Directive 99/30/EC, as laid down by Article 11(1)(a)(i) and (ii) and Article 11(1)(b) of Directive 1996/62/EC appear to be missing in respect of the following Regions: Abruzzo, Basilicata, Calabria, Campania, Friuli Venezia Giulia, Molise, Puglia, Sardegna, Sicilia, Provincia Autonoma di Bolzano and Umbria.

(1) OJ L 163 of 29.06.1999, p. 41.

(2) OJ L 319 of 04.12.2001, p. 45.

(3) OJ L 296 of 21.11.1996, p. 55.

30.4.2004

Official Journal of the European Union

C 106/41

Reference for a preliminary ruling from the Hof van Beroep te Antwerpen, of 11 March 2004 in proceedings between N.V. United Antwerp Maritime Agencies and the Kingdom of Belgium and between N.V. Seaport Terminals and (1) the Kingdom of Belgium and (2) N.V. United Antwerp Maritime Agencies

(Case C-140/04)

(2004/C 106/71)

The Hof van Beroep Antwerp te Antwerpen (Court of Appeal, Antwerp), on the basis of its decision of 11 March 2004, received at the Court’s Registry on 16 March 2004, in the proceedings pending before that court between N.V. United Antwerp Maritime Agencies and the Kingdom of Belgium and between N.V. Seaport Terminals and (1) the Kingdom of Belgium and (2) N.V. United Antwerp Maritime Agencies, refers to the Court of Justice for the European Communities for a preliminary ruling the following questions:

May the person who must present the goods to customs (Article 40 of the Community Customs Code in Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p.1)) be deemed to be the person required to fulfil the obligations arising from temporary storage of the goods (final indent of Article 203(3) of the Community Customs Code), in which connection he or his representative must lodge the summary declaration (Article 44(2) thereof) and must sign it (Article 183(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1)), and must make the goods available to the customs authorities for as long as they have not been released from the means of transport in which they are located when the goods are brought into the Community and until such time as those goods have received a custom designation?

May the person required to fulfil the obligations arising from temporary storage of the goods (final indent of Article 203(3) of the Community Customs Code) be deemed to be the person who, after release of the goods, has them in his possession in order to move them or store them, in consequence of which, under Article 51(2) and 53(2) of the Community Customs Code, he is deemed to be the holder of the goods and is consequently required, under Article 184(2) of the implementing provisions, to re-present the goods at the request of the customs authorities?

If the first and second questions are answered affirmatively, may the persons referred to in those questions consequently be deemed to be joint and several customs debtors, it being understood that the persons mentioned in the first and second questions are different persons (in this case the representative of the shipping line by which the goods were brought into the Community and the freight forwarder responsible for the storage and removal of the goods at the unloading place or quayside indicated by the customs authorities?

If the third question is answered affirmatively does the person mentioned in the first question remain the debtor until the goods are given a customs designation, regardless of the fact that after release of the goods from the means of transport by which they entered the Community they were stored with or removed by the person mentioned in the second question?

If the third question is answered in the negative must the person mentioned in the first question be regarded as remaining a customs debtor until the goods are received by the person mentioned in the second question and does the person mentioned in the second question become a debtor only from the time when he arranges the storage and removal of the goods?

If the first question is answered affirmatively and the second question negatively must the person mentioned in the first question continue to be regarded as the debtor until the time when the goods are received by the person mentioned in the second question or until the time when the goods have been given a customs designation?

30.4.2004

Official Journal of the European Union

C 106/42

Reference for a preliminary ruling by the Simvoulio tis Epikratias (Council of State), Greece, by judgment of that court of 30 December 2003 in the case of Mikhail G. Peros against Tekhniko Epimelitirio Ellados (Technical Chamber of Greece) (T.E.E.)

(Case C-141/04)

(2004/C 106/72)

Reference has been made to the Court of Justice of the European Communities by the Simvoulio tis Epikratias (Council of State), Greece, of 30 December 2003, which was received at the Court Registry on 17 March 2004, for a preliminary ruling in the case of Mikhail G. Peros against Tekhniko Epimelitirio Ellados (Technical Chamber of Greece) (T.E.E.).

The Simvoulio tis Epikratias (Council of State), asks the Court of Justice to give a preliminary ruling on the following questions:

Are the provisions of Articles 3, 4(1)(a) and (b) and (2) and 6(1) to (4) of Council Directive 89/48/EEC on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration (1), in their original version, unconditional and sufficiently precise so that, during the time that elapsed between the expiry of the period prescribed for transposing the directive and its belated transposition into the national law of a particular Member State (the host Member State), they could be relied upon against an administrative body of that latter Member State, to which the national legislation in force at the time when the directive was transposed entrusted competence to grant permission to pursue a particular regulated profession, by an individual who, relying on the fact that he holds a diploma acquired in another Member State and falling within the scope of application of the above provisions of the directive asks to be allowed, in application of those provisions, to take up and pursue the profession in question in the host Member State?

If it is considered that, during the time that elapsed between the expiry of the period prescribed for transposing Directive 89/48/EEC and its belated transposition into the national law of a particular Member State (the host Member State), the provisions of the directive were not capable of being relied upon by an individual against an administrative body of that Member State to which the national legislation in force before the directive was transposed entrusted competence to grant permission to pursue a particular profession following examination, the participants in which had to hold a diploma awarded by a higher-education establishment of the host Member State or a foreign diploma recognised as equivalent to the qualifications of higher-education establishments of that State (following a related, generally applicable, procedure for the recognition of the academic equivalence of foreign qualifications, distinguished by features, such as those set out in the grounds of this judgment), could that administrative body, taking into account the provisions of Articles 39 and 43 (formerly Articles 48 and 52) of the Treaty establishing the European Community, make acceptance of an application by an individual who, relying on a title acquired in another Member State, asked, during the above period of time, to be allowed to take up and pursue the above profession in the host Member State, depend on previous recognition, in accordance with the general procedure described above, of the academic equivalence of the title held to titles awarded by higher-education establishments of that State, and on subsequent successful participation in an examination provided for in the national legislation, or should it have taken steps itself to undertake a comparative examination of the qualifications attested to by the title submitted against the knowledge and qualifications required by national legislation and, according to the results of that examination, exempt the person concerned wholly or in part from the requirement to take an examination?

(1) OJ 1989 L 19, p. 16.

30.4.2004

Official Journal of the European Union

C 106/42

Reference for a preliminary ruling by the Simvoulio tis Epikratias (Council of State), Greece, by judgment of that court of 30 December 2003 in the case of Maria Aslanidou against the Minister for Health and Welfare

(Case C-142/04)

(2004/C 106/73)

Reference has been made to the Court of Justice of the European Communities by the Simvoulio tis Epikratias (Council of State), Greece, by judgment of 30 December 2003, which was received at the Court Registry on 17 March 2004, for a preliminary ruling in the case of Maria Aslanidou against the Minister for Health and Welfare

The Simvoulio tis Epikratias (Council of State), Greece, asks the Court of Justice to give a preliminary ruling on the following questions:

Are the provisions of Articles 3, 4(1)(a) and (b) and (2) and 10(1) to (4) of Council Directive 92/51/EEC on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC (1) unconditional and sufficiently precise so that, during the time that elapsed between the expiry of the period prescribed for transposing the directive and its belated transposition into the national law of a particular Member State (the host Member State), they could be relied upon against an administrative body of that latter Member State, to which the national legislation in force at the time when the directive was transposed entrusted competence to grant permission to pursue a particular regulated profession, by an individual who, relying on the fact that he holds a diploma acquired in another Member State and falling within the scope of application of the above provisions of the directive asks to be allowed, in application of those provisions, to take up and pursue the profession in question in the host Member State?

If it is considered that, during the time that elapsed between the expiry of the period prescribed for transposing Directive 92/51/EEC and its belated transposition into the national law of a particular Member State (the host Member State), the provisions of the directive were not capable of being relied upon by an individual against an administrative body of that Member State to which the national legislation in force before the directive was transposed entrusted competence to grant permission to pursue a particular profession either to graduates of the appropriate Technological Education and Training Establishment or to holders of a foreign diploma recognised as equivalent to a qualification from the Technological Education and Training Establishments of that State, following a generally-applicable, procedure described in the grounds of the reference, could that administrative body, taking into account the provisions of Articles 39 and 43 (formerly Articles 48 and 52) of the Treaty establishing the European Community, make acceptance of an application by an individual who, relying on a qualification acquired in another Member State, asked, during the above period of time, to be allowed to take up and pursue the above profession in the host Member State, depend on previous recognition, in accordance with the general procedure described above, of the equivalence of the qualification held to qualifications awarded by Technological Education and Training Establishments of that State, or should it have taken steps itself to undertake a comparative examination of the capacities attested to by the qualification submitted against the knowledge and qualifications required by national legislation and to reach a decision accordingly?

(1) OJ 1992 L 209, p. 25.

30.4.2004

Official Journal of the European Union

C 106/43

Action brought on 18 March 2004 by the Kingdom of Spain against the United Kingdom of Great Britain and Northern Ireland.

(Case C-145/04)

(2004/C 106/74)

An action against the United Kingdom of Great Britain and Northern Ireland was brought before the Court of Justice of the European Communities on 18 March 2004 by the Kingdom of Spain, represented by N. Díaz Abad, acting as agent, with an address for service in Luxembourg.

The Applicant claims that the Court should:

—

declare that, by enacting the ‘European Parliament (Representation) Act 2003’, the United Kingdom has failed to fulfil its obligations under articles 189, 190, 17 and 19 of the EC Treaty, as well as the 1976 Act concerning the Election of the Representatives of the European Parliament by Direct Universal Suffrage, annexed to the Council Decision of 20 September 1976 - 76/787/ECSC, EEE, EURATOM - on direct elections to the European Parliament (1) and

—	order the United Kingdom to pay the costs of these proceedings.

Pleas in law and main arguments:

The legal grounds on which this application relies are the following:

Violation of articles 189, 190 17 and 19 of the EC Treaty, since

(a)

The European Parliament (Representation) Act 2003 (hereinafter EPRA 2003) recognizes the right to vote in the elections to the European Parliament to persons who are not nationals of a Member State (i.e. the qualifying Commonwealth citizens residing in Gibraltar) and, therefore, do not have the status of citizens of the Union. In the Kingdom of Spain's view there is a clear link between the citizenship of the Union and the right to vote and stand in European parliamentary elections.

(b)

The right to vote in European parliamentary elections is regulated in article 190 EC. Therefore, the basis regulation of this right is a Community competence. The only persons who may exercise this right are the citizens of the Union, because article 190 EC should be interpreted systematically with articles 17 and 19 EC.

(c)	The term ‘peoples of the States’ used in articles 189 and 190 EC has to be interpreted as meaning only nationals of the Member States, and does not include non-EU nationals, even if they reside in a territory to which Community law applies.

(d)

Granting the right to vote and stand in the elections to the European Parliament to persons who are not Union citizens implies a breach of the Union citizenship, as certain persons would enjoy the right to vote and stand for the European Parliament, but would not possess the other rights of Union citizenship.

(e)	Accepting Member States' unilateral competence in conferring the right to vote and stand in European parliamentary elections would open the door to similar claims in other Member States.

II.

Violation of the 1976 Act, since

the 1976 Act excludes Gibraltar from its objective sphere of application when regulating European parliamentary elections. This exclusion is consistent with the status of Gibraltar, according to International and Community law.

The United Kingdom accepted in its Statement of 18 February 2004 to enable the Gibraltar electorate to vote in elections to the European Parliament as part of and on the same terms as the electorate of an existing United Kingdom constituency.

Nevertheless the EPRA 2003 includes the territory of Gibraltar (not its electorate) in an existing electoral region in the United Kingdom. This combined electoral region violates the 1976 Act and the above mentioned Statement.

(1) OJ L 278, 08.10.1976, p. 1.

30.4.2004

Official Journal of the European Union

C 106/44

Action brought on 19 March 2004 by the Commission of the European Communities against the Kingdom of the Netherlands

(Case C-146/04)

(2004/C 106/75)

An action against the Kingdom of the Netherlands was brought before the Court of Justice of the European Communities on 19 March 2004 by the Commission of the European Communities, represented by Michel van Beek and Gregorio Valero Jordana, acting as agents.

The applicant claims that the Court should:

declare that, by failing to adopt the necessary laws, regulations and administrative measures necessary to comply with

—	Directive 2000/69/EC of the European Parliament and of the Council of 16 November 2000 relating to limit values for benzene and carbon monoxide in ambient air (1) and

—	Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants (2) or in any event to inform the Commission thereof,

the Kingdom of the Netherlands has failed to fulfil its obligations under those directives;

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

Pleas in law and main arguments

The period for implementing Directive 2000/69/EC expired on 13 December 2002 and the period for implementing Directive 2001/81/EC expired on 27 November 2002.

(1) OJ L 313, of 13 December 2000, p. 12.

(2) OJ L 309, of 27 November 2001, p. 22.

30.4.2004

Official Journal of the European Union

C 106/44

Reference for a preliminary ruling from the Conseil d'État (France), Judicial Section, by a judgment of that court of 4 February 2004 in the case of De Groot en Slot Allium B.V. and Bejo Zaden B.V. against the Minister for Economy, Finance and Industry and the Minister for Agriculture, Food, Fisheries and Rural Affairs – intervener: Comité économique agricole régional fruits et légumes de la région Bretagne (CERAFEL)

(Case C-147/04)

(2004/C 106/76)

Reference has been made to the Court of Justice of the European Communities by judgment of the Conseil d'Etat (France), Judicial Section, of 4 February 2004, received at the Court Registry on 22 March 2004, for a preliminary ruling in the case of De Groot en Slot Allium B.V. and Bejo Zaden B.V. v Minister for Economy, Finance and Industry and Minister for Agriculture, Food, Fisheries and Rural Affairs – intervener: Comité économique agricole regional fruits et legumes de la region Bretagne (CERAFEL) – on the following question:

Must the provisions of Directive 70/458 (1) in conjunction with those of Directive 92/33 (2) be interpreted in such a way that it is possible to include in the common catalogue of varieties only varieties of shallots which reproduce without seeds, by vegetative propagation, and, accordingly, could the varieties ‘Matador’ and ‘Ambition’ lawfully be included in the common catalogue in the entry dealing with shallots?

(1) Council Directive 70/458/EEC of 29 September 1970 on the marketing of vegetable seed (OJ English Special Edition 1970 (III), p. 674).

(2) Council Directive 92/33/EEC of 28 April 1992 on the marketing of vegetable propagating and planting material, other than seed (OJ L 157 of 10.06.1992, p. 1).

30.4.2004

Official Journal of the European Union

C 106/45

Reference for a preliminary ruling by the Corte Suprema di Cassazione, Sezione Tributaria, by interlocutory order of that court of 27 October 2003, in the case of IMEG srl Fallita against Comune Carrara

(Case C-149/04)

(2004/C 106/77)

Reference has been made to the Court of Justice of the European Communities by order of the Corte Suprema di Cassazione, Sezione Tributaria (Supreme Court of Cassation, Tax Chamber) (Italy) of 27 October 2003, received at the Court Registry on 23 March 2004, for a preliminary ruling on the following question:

whether an Italian law which establishes a charge on the extraction of marble carried out in a particular municipality and on its export from the territory of that municipality, with exemptions for marble used in the territory of the municipality of production, is compatible with the EC Treaty in so far as:

(a)

the ‘marble charge’, governed by Law No 749/1911, is a compulsory payment of uncertain legal nature given that it cannot technically be classified as a charge since its amount does not correspond to the supply of services to each taxable person, nor technically as a tax since it bears no relationship to the capacity to pay;

(b)

the ‘marble charge’, which is used to finance the expenditure of the Municipality of Carrara arising directly or indirectly from the extraction of marble, appears to constitute a type of ‘duty’ on a commodity in that, after extraction in the territory of the Municipality of Carrara, it is ‘exported’ from that territory and gives rise to a toll system (yielding LIT 754,561,665 in 1996) by which the tax authority infringes the principles of the free movement of goods and freedom of competition in the pricing of products, contrary to Articles 23 (ex Article 9) to 31 of the EC Treaty;

(c)

the ‘marble charge’, which does not apply to extracted marble that does not leave the territory of the Municipality of Carrara, inevitably gives rise to unfavourable treatment of those persons transporting that commodity outside the territory of that municipality, which is incompatible with the rules contained in Articles 81, 85 and 86 of the current text of the Treaty (formerly Articles 85, 89 and 90).

30.4.2004

Official Journal of the European Union

C 106/46

Appeal brought on 26 March 2004 (fax 23 March 2004) by Euroagri srl against the judgment delivered on 28 January 2004 by the Second Chamber of the Court of First Instance in Case T-180/01 between Euroagri srl and the Commission of the European Communities

(Case C-153/04 P)

(2004/C 106/80)

An appeal against the judgment of the Second Chamber of the Court of First Instance of the European Communities of 28 January 2004 in Case T-180/01 between Euroagri srl and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 26 March 2004 by Euroagri srl, represented by W. Masucci, lawyer.

The applicant claims that the Court should:

—	annul the judgment at first instance delivered by the Court of First Instance of the European Communities in Case T-180/01 and accordingly grant the forms of order sought by the applicant company at first instance, cited and transcribed in full here:

—	on the merits: annul the contested decision;

—	in the alternative: annul the contested decision in part and reduce the assistance granted to the applicant in proportion to the assistance actually provided;

—

on the merits, in the preparatory inquiries: order the Commission to produce all the reports it sent to the applicant on the Endovena project, order the examination of witnesses and the personal appearance of the applicant itself, and also the making of an expert's report and/or an on-the-spot check;

—	in addition, it reiterates in all the requests for preparatory inquiries already put forward at first instance the irregular form of the submissions of the Commission.

Pleas in law and main arguments:

The applicant maintains that the contested decision is unlawful on the following grounds:

—	failure to state reasons and infringement of the principle of due process and the rights of the defence;

—	infringement of Article 24 of Regulation No 4253/88 (obligation to request the Member State to submit comments)

—	infringement of Article 25 of Regulation No 4253/88 (obligation to ensure monitoring)

—	mistaken assessment of the alleged irregularities committed by the applicant;

—	infringement of the principle of proportionality.

30.4.2004

Official Journal of the European Union

C 106/47

Action brought on 26 March 2004 by the Commission of the European Communities against the Hellenic Republic

(Case C-156/04)

(2004/C 106/81)

An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 26 March 2004 by the Commission of the European Communities, represented by Maria Patakia, Legal Adviser in the Commission's Legal Service, and Dimitris Triantafillou, a member of that service.

The applicant claims that the Court should:

declare that, by applying, in respect of the temporary use on its territory of vehicles registered in other Member States, the provisions concerning duties on temporary imports applicable to vehicles from third countries instead of the provisions of Directive 83/182/EEC, (1)

—	by applying a system of penalties for offences in respect of the declaration of temporary import of vehicles into its territory which, in comparison with the penalties imposed in practice by the administrative authorities on persons normally resident in Greece, are clearly disproportionate,

—	by systematically levying the taxes provided for in respect of the permanent import of vehicles in the case of a second theft of a temporarily imported vehicle,

—	the Hellenic Republic has failed to fulfil its obligations under Article 90 EC and Directive 83/182/EEC, in particular Article 1 thereof;

2.	order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

—

The Commission considers that, by applying to the temporary use in its territory of vehicles registered in other Member States the provisions concerning duties on temporary imports applicable to vehicles from third countries instead of the provisions of Directive 83/182/EEC, the Hellenic Republic has infringed its obligations under that directive, in particular Article 1 thereof.

—	Determination of normal residence as a precondition for the imposition of penalties.

—

A multiple tax results in being disproportionate to the gravity of the offence which concerns the temporary movement of vehicles in a Member State. It consequently constitutes a restriction on freedoms laid down by the Treaty and impedes the free movement of residents of the Community in infringement of Directive 83/182/EEC.

(1) OJ L 105 of 23.04.1983, p. 59.

30.4.2004

Official Journal of the European Union

C 106/47

Action brought on 29 March 2004 by the Commission of the European Communities against the Kingdom of Spain

(Case C-157/04)

(2004/C 106/82)

An action against the Kingdom of Spain was brought before the Court of Justice of the European Communities on 29 March 2004 by the Commission of the European Communities, represented by Gregorio Valero Jordana and Minas Konstantinidis, of its Legal Service, with an address for service in Luxembourg.

The applicant claims that the Court should:

Declare that, by failing to adopt the measures necessary to ensure, with respect to the uncontrolled waste tip in the Punta de Avalos area of the island of Gomera in the Autonomous Community of the Canary Islands, the application of Articles 4, 8, 9 and 13 of Council Directive 75/442/EEC (1) of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991; (2) the application of Article 2 of Council Directive 91/689/EEC (3) of 12 December 1991 on hazardous waste, and the application of Article 14 of Council Directive 1999/31/EC (4) of 26 April 1999 on the landfill of waste, the Kingdom of Spain has failed to fulfil its obligations under those directives;

Declare that, by failing to adopt the measures necessary to ensure, with respect to the uncontrolled waste tip in Olvera, Province of Cadiz, in the Autonomous Community of Andalusia, the application of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, the Kingdom of Spain has failed to fulfil its obligations under those directives;

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

Pleas in law and main arguments

The existence of uncontrolled tips at Punta de Avalos and Olvera implies that the Kingdom of Spain has not adopted the laws, regulations and administrative provisions needed to guarantee the responsible disposal and recovery of waste, as required by the Community legislation.

(1) OJ L 194 of 25.7.1975, p. 39.

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

(3) OJ L 377 of 31.12.1991, p. 20.

(4) OJ L 182 of 16.7.1999, p. 1.

30.4.2004

Official Journal of the European Union

C 106/48

Reference for a preliminary ruling by the Diikitiko Protodikio Ioanninon by decision of that court of 10 November 2003 in the case of Trofo-Supermarkets AE against (1) Elliniko Dimosio and (2) Nomarkhiaki Aftodiikisi Ioanninon

(Case C-158/04)

(2004/C 106/83)

Reference has been made to the Court of Justice of the European Communities by decision of the Diikitiko Protodikio Ioanninon (Administrative Court of First Instance, Ioannina) of 10 November 2003, received at the Court Registry on 29 March 2004, for a preliminary ruling in the case of Trofo-Supermarkets AE against (1) Elliniko Dimosio (Greek State) and (2) Nomarkhiaki Aftodiikisi Ioanninon (Prefectural Authority of Ioannina) on the following questions:

(a)	Does the requirement for the prior licence referred to in the grounds of the decision in order to market ‘bake-off’ products constitute a measure equivalent to a quantitative restriction within the meaning of Article 28 of the EC Treaty?

(b)

If it were considered to be a quantitative restriction, does the requirement for a prior licence in order to make bread pursue a purely qualitative objective, that is to say establish a mere qualitative differentiation with regard to the characteristics of the bread marketed (of smell, taste, colour and the appearance of the crust) and its nutritional value (judgment of the Court of Justice in Case C-325/00 Commission v Germany [2002] ECR I-9977) or does it seek to protect consumers and public health from any deterioration in the bread's quality (Simvoulio tis Epikratias (Council of State) 3852/2002)?

(c)

On the basis that the abovementioned restriction concerns both domestic and Community ‘bake-off’ products without distinction, is there a link with Community law and is that restriction capable of affecting, whether directly or indirectly, actually or potentially, the free trading of those products between Member States?

30.4.2004

Official Journal of the European Union

C 106/48

Reference for a preliminary ruling by the Diikitiko Protodikio Ioanninon by decision of that court of 26 November 2003 in the case of Carrefour Marinopoulos AE against (1) Elliniko Dimosio and (2) Nomarkhiaki Aftodiikisi Ioanninon

(Case C-159/04)

(2004/C 106/84)

Reference has been made to the Court of Justice of the European Communities by decision of the Diikitiko Protodikio Ioanninon (Administrative Court of First Instance, Ioannina) of 26 November 2003, received at the Court Registry on 29 March 2004, for a preliminary ruling in the case of Carrefour Marinopoulos AE against (1) Elliniko Dimosio (Greek State) and (2) Nomarkhiaki Aftodiikisi Ioanninon (Prefectural Authority of Ioannina) on the following questions:

(a)	Does the requirement for the prior licence referred to in the grounds of the decision in order to market ‘bake-off’ products constitute a measure equivalent to a quantitative restriction within the meaning of Article 28 of the EC Treaty?

(b)

(c)

30.4.2004

Official Journal of the European Union

C 106/49

Appeal brought on 29 March 2004 by Gustaaf van Dyck against the judgment delivered on 16 January 2004 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-113/02 between Gustaaf van Dyck and the Commission of the European Communities.

(Case C-160/04 P)

(2004/C 106/85)

An appeal against the order delivered on 16 January 2004 by the Fourth Chamber of the Court of First Instance in Case T-113/02 between Gustaaf van Dyck and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 29 March 2004 by Gustaaf van Dyck, represented by Wim Mertens, lawyer.

The appellant claims that the Court should:

1)	Declare the appeal admissible and well-founded,

2)	Therefore set aside the order of the Court of First Instance of the European Communities of 16 January 2004,

And therefore order as the Court of First Instance should have ordered, namely:

—	declare the application lodged at the Registry of the Court of First Instance on 11 April 2002 admissible, and therefore annul:

—	the decision of the Commission taken on 10 January 2002, notified on 15 January 2002, dismissing the applicant's complaint of 14 August 2001,

—	the Commission's decision of 5 July 2001 to take no action in respect of the request by the applicant on 1 June 2001 concerning promotions to Grade B2, and

—	the Commission decision revising the applicant's staff report

as being contrary to the Staff Regulations and the principle of equality

And order the Commission to pay the costs.

Pleas in law and main arguments

—

Contrary to what the Court of First Instance held in its judgment, the list of the most deserving officials is a decision adversely affecting the applicant, in that it excludes any promotion; it is for that reason that the appeal seeks annulment of the decision pursuant to which the list of promoted officials was drawn up, and not the annulment of other measures preparatory to that decision.

—	Contrary to what the Court of First Instance holds in its judgment, the letter of 5 July 2001 – in which the chairman of the promotions committee informed the applicant that no action could be taken on his request – is a measure adversely affecting the applicant.

—

Contrary to what the Court of First Instance held, the complaint of 14 August 2001 was brought by the applicant not only after the chairman of the promotions committee had informed him by letter of 5 July 2001 that no action could be taken on his request, but after the Appointing Authority had excluded the applicant from promotion through announcement of 10 August 2001 and after the Appointing Authority had published the list of promotions on 14 August 2001. The Appointing Authority had decided against the applicant twice before the latter lodged his complaint on 14 August 2001. The Court of First Instance ought therefore to have ordered that there was indeed a decision of the Appointing Authority, and in fact two decisions, against which the applicant had lodged a complaint.

—

The Court of First Instance ought therefore to have held that the Commission infringed Articles 25 and 90(1) of the Staff Regulations, in that (1) the Appointing Authority gave no reasoned decision to the applicant in response to his request of 1 June 2001, and (2) the response of the promotions committee is a measure adversely affecting the applicant.

30.4.2004

Official Journal of the European Union

C 106/49

Action brought on 30 March 2004 by the Republic of Austria against the European Parliament and the Council of the European Union (fax of 24 March 2004)

(Case C-161/04)

(2004/C 106/86)

An action against the European Parliament and the Council of the European Union was brought before the Court of Justice of the European Communities on 30 March 2004 (fax of 24 March 2004) by the Republic of Austria, represented by Harald Dossi, acting as Agent, with an address for service in Luxembourg.

The applicant claims that the Court should:

—	annul Regulation (EC) No 2327/2003 of the European Parliament and of the Council of 22 December 2003 establishing a transitional points system applicable to heavy goods vehicles travelling through Austria for 2004 within the framework of a sustainable transport policy; (1)

—	order the defendant to pay the costs.

Pleas in law and main arguments:

In the opinion of the Republic of Austria, Regulation (EC) No 2327/2003 of the European Parliament and of the Council of 22 December 2003 should be declared void on the following grounds:

—	Infringement of the primary-law principle of proportionality

In light of the scientifically supported prognosis, the contested regulation falls to be classified as being (entirely) inappropriate for attaining the objective, set out in its preamble, of reducing pollution by heavy goods traffic as a sustainable and environmentally acceptable solution.

Further, the burdens imposed by the regulation are out of all reasonable proportion to the means provided for achieving that objective.

On the basis of a cost estimate established by the operator of the electronic ecopoint system applying up to now, it is to be assumed that the restructuring and/or reinforcement of the ecopoint system in force up to 31 December 2003 that will be required for the purpose of implementing the contested regulation, in conjunction with the current operating and maintenance works, will involve costs totalling some EUR 9 million.

As implementation of the contested regulation would give rise to costs in the region of EUR 9 million and ultimately only an increase in emissions could thereby be ‘achieved’, the contested regulation infringes in any event the primary-law principle of proportionality and for that reason alone must therefore be declared void.

—	Breach of obligations under the environment ‘cross-section clause’ in Article 6 EC

The contested regulation fails to do justice to the guarantee of maximal and optimal environmental protection laid down in Article 6 EC, because it will bring about, not a reduction, but rather an increase in emissions. To that extent the contested regulation (also) breaches Article 6 EC.

—	Breach of primary-law obligations under Article 11 of Protocol No 9 on Road, Rail and combined Transport in Austria

The contested regulation is also unlawful inasmuch as it is at variance with the primary-law obligations under the Transit Protocol. Although the ecopoint system expired at the end of 2003, the objective of a sustainable and environmentally appropriate resolution of the environmental problems caused by traffic, implicit in the Transit Protocol, none the less remains unachieved.

The transitional provisions in Article 11 of the Transit Protocol cannot be construed as meaning that the rules on protection of the environment and the health of the population, initially guaranteed in the EEC-Austria Transit Agreement and subsequently incorporated in the Transit Protocol, were simply to ‘expire’ (without being replaced) after a specified transitional period and be mandatorily ‘tipped over’ into a Community-law system providing a (significantly) lower standard of protection.

Such transitional provisions would in large measure lose their useful effect and ought therefore to have been expressly and unequivocally designated as being transitional, had the Member States, as ‘Lords of the Treaties’, actually so intended.

If the objective of the transit regime - videlicet, protection of the environment and health of the population in general and a 60 % reduction in NOx emissions in particular - is also to apply after expiry of the transitional period on 31 December 2003, that objective, as a constituent part of the Transit Protocol and thus part of primary Community law, is binding on the European Community.

The Community is in this case obligated to continue to comply with the objective of the transit regime. Provisions of secondary law which do not permit attainment of that objective must be classified as unlawful. The contested regulation fails in any event to achieve the binding objective deriving from the Transit Protocol and is for that reason at variance with primary law.

As is clear from the traffic and emissions report of 1 March 2004 entitled ‘LKW-Transitverkehr durch Österreich: Bilanz und Ausblick’ (‘HGV transit traffic through Austria: a balance and outlook’), it falls to be assumed that at any rate when the contested regulation comes into force there will be an increase in emissions, quite apart from the fact that the objective under Protocol No 9 to the 1994 Act of Accession (OJ 1994 C 241 of 29 August 1994, p. 361), that is to say, a reduction of nitrous oxide emissions of 40 % vis-à-vis the base value, could not be achieved at any given point during the period for which the agreement ran or on a permanent basis. Those emissions could, for the year 2006, amount to as much as 133 % or, viewed realistically, even 260 % (measured against the abovementioned base value).

—	Infringement of the primary-law principle of certainty

The contested regulation is contrary to the Community-law principle of certainty and is for that reason at variance with primary law.

(1) OJ 2003 L 345, p. 30.

30.4.2004

Official Journal of the European Union

C 106/51

Action brought on 31 March 2004 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland.

(Case C-164/04)

(2004/C 106/87)

An action against the United Kingdom of Great Britain and Northern Ireland was brought before the Court of Justice of the European Communities on 31 March 2004 by the Commission of the European Communities, represented by E. Traversa and M. Shotter, acting as agents, with an address for service in Luxembourg.

The Applicant claims that the Court should:

—

declare that by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2001/17/EC of the European Parliament and of the Council of 19 March 2001 on the reorganisation and winding-up of insurance undertakings (1) or, in any event, by failing to notify such provisions to the Commission, the the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 31 of this Directive;

—	order the United Kingdom of Great Britain and Northern Ireland to pay the costs.

Pleas in law and main arguments:

The period within which the directive had to be transposed expired on 20 April 2003.

(1) OJ L 110, 20.04.2001, p. 28.

30.4.2004

Official Journal of the European Union

C 106/51

Action brought on 1 April 2004 by the Commission of the European Communities against Ireland.

(Case C-165/04)

(2004/C 106/88)

An action against Ireland was brought before the Court of Justice of the European Communities on 1 April 2004 by the Commission of the European Communities, represented by K. Banks, acting as agent, with an address for service in Luxembourg.

The Applicant claims that the Court should:

—	declare that, by failing to take the necessary measures to comply with the judgment of the Court of Justice of 19 March 2002 in case C-13/00 (1), Commission v. Ireland, Ireland has failed to fulfil its obligations under Article 228 of the EC Treaty;

—

order Ireland to pay to the Commission of the European Communities a penalty payment of EUR 3.600 for each day of delay in taking the measures necessary to comply with the judgment in case C-13/00, from delivery of judgment in the present proceedings until the judgment in case C-13/00 has been complied with;

—	order Ireland to pay the costs.

Pleas in law and main arguments:

In its judgment of 19 March 2002 in case C-13/00, the Court declared that, by failing to obtain its adherence before 1 January 1995 to the Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 24 July 1971), Ireland had failed to fulfil its obligations under Article 228(7) of the EC Treaty (now, after amendment, Article 300(7) EC) in conjunction with Article 5 of Protocol 28 to the Agreement on the European Economic Area of 2 May 1992.

Article 228(1) EC requires a Member State to take the necessary measures to comply with a judgment by the Court which finds that it has failed to fulfil an obligation under the Treaty.

Two years have now elapsed since the Court's judgment in case C-13/00 and the Commission has received no information allowing it to consider that Ireland has finally ratified the Paris Act. It is therefore obliged to conclude that Ireland has not yet taken the measures necessary to comply with the Court's judgment in case C-13/00.

In accordance with Article 228(2) EC the Commission asks the Court to impose a penalty payment of EUR 3.600 on Ireland for each day's delay in implementing the Court's judgment in case C-13/00, beginning from the day on which the Court gives its judgment in the present case.

(1) ECR 2002, p. I - 513.

30.4.2004

Official Journal of the European Union

C 106/55

JUDGMENT OF THE COURT OF FIRST INSTANCE

11 December 2003

in Case T-305/00: Conserve Italia Soc. coop. rl v Commission of the European Communities (1)

(Agriculture - EAGGF - Discontinuance of financial aid - Statement of reasons - Error of assessment - Article 24 of Regulation (EEC) No 4253/88 - Principle of proportionality)

(2004/C 106/105)

Language of the case: Italian

In Case T-305/00, Conserve Italia Soc. coop. rl, established in San Lazzaro di Savena (Italy), represented by M. Averani, A. Pisaneschi and S. Zunarelli, lawyers, with an address for service in Luxembourg, v Commission of the European Communities (Agents: L. Visaggio and M. Moretto): Application for annulment of Commission Decision C (2000) 1751 of 11 July 2000 discontinuing aid from the EAGGF for Project No 88.41.IT.003.0, entitled 'Modernisation of an establishment processing products in the fruit and vegetable sector at Portomaggiore (Ferrara)', the Court of First Instance (Fifth Chamber); R. García-Valdecasas, President, P. Lindh and J.D. Cooke, Judges; J. Plingers, Administrator, for the Registrar, has given a judgment on 11 December 2003, in which it:

1.	Dismisses the application;

2.	Orders the applicant to bear its own costs and those of the Commission.

(1) OJ C 355 of 9.12.2000.

30.4.2004

Official Journal of the European Union

C 106/55

JUDGMENT OF THE COURT OF FIRST INSTANCE

3 March 2004

in Case T-48/01: François Vainker and Brenda Vainker v European Parliament (1)

(Officials - Occupational disease - Article 73 of the Staff Regulations - Claim for damages - Irregularities in the procedure for recognition of the occupational origin of a disease - Damage - Damage suffered by the spouse of a former official)

(2004/C 106/106)

Language of the case: English

In Case T-48/01, François Vainker, former official of the European Parliament and Brenda Vainker, his wife, resident in Middlesex (United Kingdom), represented by J. Grayston and A. Bywater, solicitors, v European Parliament (Agents: H. von Hertzen and D. Moore and D. Waelbroeck): Application for damages pursuant to Article 236 EC and the second paragraph of Article 288 EC, in order to make good damage allegedly suffered, first, by the applicant, Mr Vainker, by reason of the fact that he has contracted an occupational disease and, second, by the applicants as a result of the mishandling by the defendant institution of the claim for compensation under Article 73 of the Staff Regulations of Officials of the European Communities, the Court of First Instance (Second Chamber), composed of: N.J. Forwood, President of Chamber, J. Pirrung and A.W.H. Meij, Judges; H. Jung, Registrar, has given a judgment on 3 March 2004, in which it:

1.	Orders the Parliament to pay Mr Vainker the sum of EUR 60 000.

2.	Orders the Parliament to pay the applicant, Mr Vainker, the sum of GBP 8 244.94 by way of reimbursement of legal costs incurred during the procedure for recognition of the occupational origin of Mr Vainker's disease.

Orders the Parliament to pay the applicant, Mr Vainker, default interest on the sum of EUR 617 617.94 from 29 November 1999 to 9 January 2002. The rate of that interest must be calculated on the basis of the rate fixed by the European Central Bank for its main refinancing operations, in force from time to time during the period concerned, plus two percentage points.

4.	Dismisses the remainder of the application.

5.	Orders the Parliament to pay its own costs and two thirds of those of the applicants.

(1) OJ C 186 of 30.06.2001.

30.4.2004

Official Journal of the European Union

C 106/56

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 16 March 2004

in Case T-157/01: Danske Busvognmænd v Commission of the European Communities (1)

(State aid - Regional public transport by bus)

(2004/C 106/107)

Language of the case: Danish

In Case T-157/01: Danske Busvognmænd, established in Frederiksberg (Denmark), represented by P. Dalskov and N. Symes, lawyers, against the Commission of the European Communities (Agents: H. Støvlbæk and D. Triantafyllou) supported by the Kingdom of Denmark, (Agents: J. Molde, P. Biering and K. Hansen), – application for annulment of Commission decision SG(2001) D/287297 of 28 March 2001 (aid NN 127/2000) declaring aid granted by the Danish authorities to Combus A/S in the form of capital injections as part of the privatisation of that company to be compatible with the common market – the Court of First Instance (Second Chamber, Extended Composition), composed of N.J. Forwood, President, J. Pirrung, P. Mengozzi, A.W.H. Meij and M. Vilaras, Judges; D. Christensen, Administrator, for the Registrar, gave a judgment on 16 March 2004, in which it:

1)	Annuls Commission decision SG(2001) D/287297 of 28 March 2001 (aid NN 127/2000) in so far as it declares aid granted by the Danish authorities to Combus A/S in the form of capital injections in the amounts of DKK [Y] and DKK [X] to be compatible with the common market;

2)	Dismisses the remainder of the application;

3)	Orders the Commission to bear its own costs and pay those of the applicant;

4)	Orders the Kingdom of Denmark to bear its own costs.

(1) OJ No C 275 of 29.9.01

30.4.2004

Official Journal of the European Union

C 106/56

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 18 March 2004

in Case T-204/01: Maria-Luise Lindorfer v Council of the European Union (1)

(Officials - Transfer of the flat-rate redemption value of retirement pension rights acquired in the course of professional activities prior to entry into the service of the Communities - Calculation of the years of pensionable service - Article 11(2) of Annex VIII to the Staff Regulations - General implementing provisions - Principle of equal treatment - Free movement of workers)

(2004/C 106/108)

Language of the case: French

In Case T-204/01: Maria-Luise Lindorfer, an official of the Council of the European Union, residing in Brussels, represented by G. Vandersanden and L. Levi, avocats, against Council of the European Union (Agents: F. Anton and A. Pilette) – application for annulment of the Council decision of 3 November 2000 calculating the applicant's years of pensionable service following transfer to the Community scheme of the flat-rate redemption value of the retirement pension rights which she had acquired under the Austrian scheme – the Court (Fifth Chamber), composed of: R. García Valdecasas, President, P. Lindh and J.D. Cooke, Judges; J. Plingers, Administrator, for the Registrar, delivered a judgment on 18 March 2004, the operative part of which is as follows:

(1)	The application is dismissed.

(2)	The parties shall bear their own costs.

(1) OJ C 317 of 10.11.01.

30.4.2004

Official Journal of the European Union

C 106/56

JUDGMENT OF THE COURT OF FIRST INSTANCE FOURTH CHAMBER, EXTENDED COMPOSITION

19 February 2004

In Joined Cases T-297/01 and T-298/01: SIC – Sociedade Independente de Comunicação, SA v Commission of the European Communities (1)

(State aid - Public television - Complaint - Action for failure to act - Definition of position by the Commission - Whether aid new or existing - Request for a ruling that there is no need to adjudicate - Dispute - Compliance with an annulling judgment - Commission's obligation to make an investigation - Reasonable period)

(2004/C 106/109)

Language of the case: Portuguese

In Joined Cases T-297/01 and T-298/01, SIC – Sociedade Independente de Comunicação, SA, established in Carnaxide (Portugal), represented by Mes C. Botelho Moniz and E. Maia Cadete, avocats, v Commission of the European Communities (Agents: J. de Sousa Fialho Lopes and J. Buendía Sierra): Application for a declaration under Article 232 EC that the Commission has failed to fulfil its obligations under the EC Treaty, by failing to adopt a decision in relation to the complaints lodged by the applicant on 30 July 1993, 22 October 1996 and 20 June 1997, against the Portuguese Republic for infringement of Article 87 EC, and by failing, in contravention of Article 232 EC and the principle of sound administration, to take the measures to comply with the judgment of the Court of First Instance in Case T-46/97 [2000] ECR II-2125 and initiate the formal review procedure under Article 88(2) EC, the Court of First Instance (Fourth Chamber, Extended Composition), composed of V. Tiili, President, J. Pirrung, P. Mengozzi, A.W.H. Meij and M Vilaras, Judges; D. Christensen, Administrator, for the Registrar, has given a judgment on 19 February 2004, in which it:

1.	Declares that there is no need to adjudicate on Cases T-297/01 and T-298/01.

2.	Orders the Commission to pay the costs.

(1) OJ C 84 of 06.04.2002.

30.4.2004

Official Journal of the European Union

C 106/57

JUDGMENT OF THE COURT OF FIRST INSTANCE OF

31 March 2004

in Case T-20/02: Interquell GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(‘Community trade mark - Application for Community figurative and word mark HAPPY DOG - Earlier national word mark HAPPIDOG - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94’)

(2004/C 106/110)

Language of the case: German

In Case T-20/02: Interquell GmbH, established in Wehringen (Germany), represented by G.J. Hodapp, lawyer, against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: G. Schneider and U. Pfleghar), supported by Provimi Ltd, established in Staffordshire (United Kingdom), represented by M. Kinkeldey, lawyer, the other party to the proceedings before the Board of Appeal of OHIM, intervening before the Court of First Instance, being SCA Nutrition Ltd, established in Staffordshire, represented by M. Kinkeldey – action brought against the decision of the Second Board of Appeal of OHIM of 27 November 2001 (Case R 264/2000-2) relating to opposition proceedings between Interquell GmbH and SCA Nutrition Ltd, the Court of First Instance (Fourth Chamber), composed of H. Legal, President, V. Tiili and M. Vilaras, Judges; Registrar: I. Natsinas, Administrator, gave a judgment on 31 March 2004, in which it:

1.	Dismisses the action;

2.	Orders the applicant to bear its own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) and SCA Nutrition Ltd;

3.	Orders Provimi to bear its own costs

(1) OJ 2002 C 109.

30.4.2004

Official Journal of the European Union

C 106/57

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 18 March 2004

in Case T-67/02: Léopold Radauer v Council of the European Union (1)

(2004/C 106/111)

Language of the case: French

In Case T-67/02: Léopold Radauer, an official of the Council of the European Union, residing in Brussels, represented by G. Vandersanden and L. Levi, avocats, against Council of the European Union (Agent: F. Anton) – application for annulment of the Council decision of 17 April 2001 calculating the applicant's years of pensionable service following transfer to the Community scheme of the flat-rate redemption value of the retirement pension rights which he had acquired under the Austrian scheme – the Court (Fifth Chamber), composed of: R. García Valdecasas, President, P. Lindh and J.D. Cooke, Judges; J. Plingers, Administrator, for the Registrar, delivered a judgment on 18 March 2004, the operative part of which is as follows:

(1)	The application is dismissed.

(2)	The parties shall bear their own costs.

(1) OJ C 97 of 20.04.02.

30.4.2004

Official Journal of the European Union

C 106/58

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 25 March 2004

in Case T-145/02 Armin Pietrich v Commission of the European Communities (1)

(Open competition - Non-admission to tests - Competition notice - Prescribed relevant experience - Obligation to state reasons - Principle of sound administration and duty to have regard for the interests of officials)

(2004/C 106/112)

Language of the case: French

In Case T-145/02, Armin Pietrich, residing in Travemünde (Germany), represented by P. Goergen, lawyer, with an address for service in Luxembourg, against Commission of the European Communities (Agents: J. Currall and V. Joris) – application, first, for the annulment of the decision of 11 February 2002 of the selection board in competition COM/A/7/01 refusing to mark the applicant's written test and rejecting his candidature, and of all subsequent steps and measures taken in that competition, and, second, for compensation for the material and non-material damage allegedly suffered as a result of that decision – the Court of First Instance (Single Judge: R. García-Valdecasas); I. Natsinas, Administrator, for the Registrar, has given a judgment on 25 March 2004 in which it:

1.	Dismisses the application;

2.	Dismisses the claim in the alternative that the applicant should be allowed to produce evidence showing that the functions of a ‘sonderschulrektor’ fall within the scope of the relevant experience called for by the competition notice;

3.	Orders the parties to bear their own costs.

(1) OJ C 156 of 29.6.02.

30.4.2004

Official Journal of the European Union

C 106/58

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 10 March 2004

in Case T-177/02: Malagutti-Vezinhet SA v Commission of the European Communities (1)

(General safety of products - Community rapid-alert system for foodstuffs - Action for compensation)

(2004/C 106/114)

Language of the case: French

In Case T-177/02: Malagutti-Vezinhet SA, a company in the process of being wound up by court order, having its registered office in Cavaillon (France), represented by B. Favarel Veidig and N. Boron, avocats, with an address for service in Luxembourg, against Commission of the European Communities (Agents: M.-J. Jonczy and M. França) - application for compensation in respect of the harm allegedly suffered by the applicant following the release by the Commission of a rapid alert message informing consumers of the presence of pesticide residues in apples originating in France and naming the applicant as exporter of the goods in question – the Court (Second Chamber), composed of: N.J. Forwood, President, J. Pirrung and A.W.H. Meij, Judges; B. Pastor, Deputy Registrar, delivered a judgment on 10 March 2004, the operative part of which is as follows:

(1)	The application is dismissed.

(2)	The applicant is ordered to pay the costs.

(1) OJ C 233 of 28.09.02.

30.4.2004

Official Journal of the European Union

C 106/59

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 17 March 2004

in Joined Cases T-183/02 and T-184/02, El Corte Inglés, SA against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Opposition proceedings - Earlier word marks MUNDICOLOR - Application for Community word mark MUNDICOR - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2004/C 106/115)

Language of the case: Spanish

In Joined Cases T-183/02 and T-184/02, El Corte Inglés, SA, established in Madrid (Spain), represented by J.L. Rivas Zurdo, lawyer, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agent: J. Crespo Carrillo), the intervener before the Court of First Instance being, in Case T-184/02, Iberia Líneas Aéreas de España, SA, established in Madrid, represented by A. García Torres, lawyer, the other party to the proceedings before the Board of Appeal of OHIM in Case T-183/02 being González Cabello, SA, established in Puente Genil (Spain), actions brought against two decisions of the First Board of Appeal of OHIM of 22 March 2002 (Cases R 798/1999-1 and R 115/2000-1) relating to opposition proceedings between González Cabello, SA, and El Corte Inglés, SA, and between Iberia Líneas Aéreas de España, SA, and El Corte Inglés, SA, respectively, the Court of First Instance (Fourth Chamber), composed of: V. Tiili, President, P. Mengozzi and M. Vilaras, Judges, J. Palacio González, Principal Administrator, for the Registrar, has given the following judgment on 17 March 2003, in which it:

1.	Dismisses the actions;

2.	Orders the applicant to pay the costs.

(1) OJ C 202 of 24.8.2002

30.4.2004

Official Journal of the European Union

C 106/59

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 1 April 2004

in Case T-198/02: N v Commission of the European Communities (1)

(Officials - Disciplinary measures - Removal from post without loss of pension rights - Statement of reasons - Rights of the defence - Proportionality - Failure to comply with the time-limits fixed by Article 7 of Annex IX to the Staff Regulations - Article 12, first paragraph, of the Staff Regulations)

(2004/C 106/117)

Language of the case: French

In Case T-198/02: N, a former official of the Commission of the European Communities, resident in Asse (Belgium), represented by N. Lhoëst and E. de Schietere de Lophem, lawyers, with an address for service in Luxembourg, against Commission of the European Communities (Agent: J. Currall) – application (1) for annulment of the decision of the appointing authority of the Commission of 25 February 2002 imposing on the applicant the disciplinary measure of removal from post without withdrawal or reduction of entitlement to retirement pension in accordance with Article 86(2)(f) of the Staff Regulations of Officials of the European Communities and (2) for damages – the Court of First Instance (Third Chamber), composed of J. Azizi, President, M. Jaeger and F. Dehousse, Judges; H. Jung, Registrar, gave a judgment on 1 April 2004 in which it:

(1)	Orders the Commission to pay the applicant the sum of EUR 700 as compensation for the non-material damage suffered by him;

(2)	Dismisses the remainder of the action;

(3)	Orders the Commission to bear its own costs and to pay one-sixth of the applicant's costs of the present proceedings and the proceedings for interim relief;

(4)	Orders the applicant to bear five-sixths of his costs of the present proceedings and the proceedings for interim relief.

(1) OJ No C 233 of 28.9.2002.

30.4.2004

Official Journal of the European Union

C 106/60

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 2 March 2004

in Case T-234/02: Christos Michael v Commission of the European Communities (1)

(Officials - Appointment of a deputy head of unit and a head of section - Measure adversely affecting the applicant - None - Inadmissible)

(2004/C 106/118)

Language of the case: Greek

In Case T-234/02: Christos Michael, an official of the Commission of the European Communities, residing in Brussels, represented by C. Tagaras, avocat, against Commission of the European Communities (Agents: H. Tserepa-Lacombe and F. Clotuche-Duvieusart) application for annulment of the decisions by the Commission appointing a deputy head of the Unit ‘Internal Policies, Central Administration, CCR and Agencies’ of the ‘Financial Control’ Directorate-General and a head of section for the ‘Internal Policies and Agencies’ section of that unit the Court (Fifth Chamber), composed of: P. Lindh, President, R. García Valdecasas and J.D. Cooke, Judges; I. Natsinas, Administrator, for the Registrar, delivered a judgment on 2 March 2004, the operative part of which is as follows:

(1)	The application is dismissed as being inadmissible.

(2)	The parties shall bear their own costs, including the costs relating to the application for interim relief.

(1) OJ C 247 of 12.10.02.

30.4.2004

Official Journal of the European Union

C 106/61

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 23 March 2004

in Case T-310/02 Athanassios Theodorakis v Council of the European Union (1)

(Officials - Recruitment - Article 29 of the Staff Regulations - Vacancy notice - Rejection of application - Out of time)

(2004/C 106/120)

Language of the case: French

In Case T-310/02, Athanassios Theodorakis, an official of the Commission of the European Communities, residing in Uccle (Belgium), represented by S. Pappas, lawyer, against Council of the European Union (Agents: F. Anton and B. Driesen) – application for the annulment, first, of the Council decision of 11 April 2002 rejecting the applicant's candidature for the post of Director General in the External Economic Relations, Common Foreign and Security Policy (CFSP) Directorate General in the Secretariat General of that institution and of the decision of 10 July 2002 expressly rejecting his complaint, and, second, of the decision appointing the Director General of the External Economic Relations, Common Foreign and Security Policy (CFSP) Directorate General in the Secretariat General of the Council – the Court of First Instance (Second Chamber), composed of J. Pirrung, President, A.W.H. Meij and N.J. Forwood, Judges; D. Christiansen, Administrator, for the Registrar, has given a judgment on 23 March 2004 in which it:

(1)	Dismisses the application;

(2)	Orders the parties to bear their own costs.

(1) OJ No C 305 of 7.12.02.

30.4.2004

Official Journal of the European Union

C 106/61

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 1 April 2004

in Case T-312/02: Lucio Gussetti v Commission of the European Communities (1)

(Officials - Dependent child allowance - Article 67(2) of the Staff Regulations - Anti-cumulation rule applicable to national allowances of like nature - Article 85 of the Staff Regulations - Conditions for recovery of sums paid but not due)

(2004/C 106/121)

Language of the case: Italian

In Case T-312/02: Lucio Gussetti, resident in Brussels (Belgium), represented by M. Merola, lawyer, with an address for service in Luxembourg, against Commission of the European Communities (Agents: J. Currall and R. Amorosi) – application for annulment of the Commission's decision of 15 February 2002 deducting as from 1 June 2001 the sums overpaid to the applicant as dependent child allowance, following application of the anti-cumulation rule in Article 67(2) of the Staff Regulations, corresponding to the orphan's family allowances he receives from the Belgian authorities – the Court of First Instance (Third Chamber), composed of J. Azizi, President, M. Jaeger and F. Dehousse, Judges; J. Palacio González, Principal Administrator, for the Registrar, gave a judgment on 1 April 2004 in which it:

(1)	Dismisses the action;

(2)	Orders the parties to bear their own costs.

(1) OJ No C 305 of 7.12.2002.

30.4.2004

Official Journal of the European Union

C 106/61

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 18 February 2004

in Case T-320/02: Monika Esch-Leonhardt and Others v European Central Bank (1)

(Officials - Personnel file - Letter concerning the transmission of union information by electronic mail - Refusal to remove from applicants' personnel files)

(2004/C 106/122)

Language of the case: German

In Case T-320/02: Monika Esch-Leonhardt, Tillmann Frommhold and Emmanuel Larue, members of staff of the European Central Bank, residing in Frankfurt-am-Main, (Germany) and Karben (Germany) respectively, represented by B. Karthaus, lawyer, with an address for service in Luxembourg, against European Central Bank (Agents: T. Gilliams, G. Gruber and B. Wägenbaur) – application for annulment of the decision to include in the applicants' personnel files a letter concerning their use of the internal electronic mail system for transmitting union information and, secondly, a claim for damages – the Court of First Instance (Second Chamber), composed of N. J. Forwood, President, J. Pirrung and A.W.H. Meij, Judges; I. Natsinas, Administrator, for the Registrar, gave a judgment on 18 February 2004, in which it:

1.	Dismisses the application.

2.	Orders the parties to bear their own costs, including those incurred in the proceedings for interim relief in Case T-320/02 R.

(1) OJ C 323 of 21.12.02.

30.4.2004

Official Journal of the European Union

C 106/62

JUDGMENT OF THE COURT OF FIRST INSTANCE (FOURTH CHAMBER)

3 March 2004

In Case T-355/02: Mülhens GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Opposition procedure - Likelihood of confusion - Application for Community word mark ZIRH - Earlier Community figurative mark including the word “sir” - Article 8(1)(b) of Regulation (EC) No 40/94)

(2004/C 106/123)

Language of the case: English

In Case T-355/02, Mülhens GmbH & Co. KG, established in Cologne (Germany), represented by T. Schulte-Beckhausen, lawyer, v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: J. S. Laitinen and L. Rampini), the other party to the proceedings before the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) being Zirh International Corp., established in New York, New York (United States of America), represented by B. Nuseibeh, lawyer: Action brought against the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 1 October 2002 (Case R 657/2001-2) concerning an opposition procedure between Mülhens GmbH & Co. KG and Zirh International Corp., the Court of First Instance (Fourth Chamber), composed of V. Tiili, President, P. Mengozzi and M. Vilaras, Judges; J. Plingers, Administrator, for the Registrar, has given a judgment on 3 March 2004, in which it:

1.	Dismisses the action;

2.	Orders the applicant to pay the costs.

(1) OJ C 70 of 22.03.2003.

30.4.2004

Official Journal of the European Union

C 106/62

JUDGMENT OF THE COURT OF FIRST INSTANCE

18 February 2004

in Case T-10/03: Jean-Pierre Koubi v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Application for Community word mark CONFORFLEX - Earlier national word and figurative marks FLEX - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)

(2004/C 106/125)

Language of the case: French

In Case T-10/03, Jean-Pierre Koubi, residing in Marseilles (France), represented by K. Manhaeve, lawyer, with an address for service in Luxembourg, v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: S. Laitinen and S. Pétrequin); the other party to the proceedings being: Fabricas Lucia Antonio Betere, SA (Flabesa), established in Madrid (Spain), represented by I. Valdelomar, lawyer: Action brought against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 16 October 2002 (Case R 542/2001-4) relating to opposition proceedings between Mr Koubi and Fabricas Lucia Antonio Betere, SA (Flabesa), the Court of First Instance (Fourth Chamber) composed of: H. Legal, President, V. Tiili and M. Vilaras, Judges; B. Pastor, Deputy Registrar, has given a judgment on 18 February 2004, in which it:

1.	Dismisses the action

2.	Orders the applicant to pay the costs.

(1) OJ C 55 of 08.03.2003.

30.4.2004

Official Journal of the European Union

C 106/63

JUDGMENT OF THE COURT OF FIRST INSTANCE

of 2 March 2004

in Case T-14/03: Colette Di Marzio v Commission of the European Communities (1)

(Officials - Conditions for admissibility of actions - Remuneration - Change of place of employment - Withdrawal of the benefit of the weighting for France and the expatriation allowance - Principle of non-discrimination - Duty to have regard for the welfare of officials)

(2004/C 106/127)

Language of the case: French

In Case T-14/03: Colette Di Marzio, official of the Commission of the European Communities, residing in Ginasservis (France), represented by G. Vandersanden and L. Levi, lawyers, against Commission of the European Communities (Agents: J. Currall, V. Joris and D. Waelbroeck) - application for annulment of a decision to make deductions from the applicant's salary, of a decision withdrawing the benefit of the secretarial allowance, of a decision withdrawing the benefit of the fixed allowance for travel expenses and for damages to make good the loss she alleges to have suffered – the Court of First Instance (First Chamber), composed of B.Vesterdorf, President, H. Legal and E. Martins Ribeiro, Judges; I Natsinas, administrator, for the Registrar, gave a judgment on 2 March 2004, in which it:

1.	Dismisses the application.

2.	Orders the parties to bear their own costs

(1) OJ No C 83 of 5. 4. 2003.

30.4.2004

Official Journal of the European Union

C 106/64

ORDER OF THE COURT OF FIRST INSTANCE

of 1 March 2004

in Case T-210/99 Johan Henk Gankema v Commission of the European Communities (1)

(Annulment action - Inaction by the applicant - No need to give judgment)

(2004/C 106/130)

Language of the case: Dutch

In Case T-210/99: Johan Henk Gankema, residing in Veendam (Netherlands), represented by E. Maas, lawyer, with an address for service in Luxembourg, supported by the Kingdom of the Netherlands (Agents: originally M. Fierstra and L. Cuelenaere, then L. Cuelenaere and V. Koningsberger, and finally H. G. Sevenster) against the Commission of the European Communities (Agents: originally G. Rozet and H. Speyart, then G. Rozet and H. van Vliet):– Application for annulment of Commission Decision 1999/705/EC of 20 July 1999 on the State aid implemented by the Netherlands for 633 Dutch service stations located near the German border – the Court of First Instance (Second Chamber, Extended Composition), composed of J. Pirrung, President, V. Tiili, A..W. H. Meij, M. Vilaras and N. J. Forwood, Judges; H. Jung, Registrar, made an order on 1 March 2004, the operative part of which is as follows:

1)	There is no need to give a ruling in the present application.

2)	The applicant is ordered to bear his own costs and to pay the Commission's costs. The Kingdom of the Netherlands is ordered to pay its own costs.

(1) OJ C 6 of 8.1.2000

30.4.2004

Official Journal of the European Union

C 106/64

ORDER OF THE COURT OF FIRST INSTANCE

of 9 February 2004

in Case T-120/03 Synopharm G,bH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (1)

(Community trade mark - Opposition - Withdrawal of the opposition - No need to adjudicate)

(2004/C 106/131)

Language of the case: German

In Case T-120/03 between Synopharm GmbH & Co. KG, represented by G. Hodapp, lawyer, and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: G. Schneider and U. Pfleghar), the other party to the proceedings before the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) being Pentafarma – Sociedad Técnico-Medicinal Lda, represented by J. Pereira da Cruz, lawyer – Action brought against the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 January 2003 (Case R 44/2002-3) relating to the opposition proceedings between Synopharm GmbH & Co. KG and Pentafarma – Sociedad Técnico-Medicinal Lda – the Court of first instance (Second Chamber), composed of J. Pirrung, President, A.W.H. Meij and N.J. Forwood, Judges; H. Jung, Registrar, made an order on 9 February 2004, the operative part of which is as follows:

1.	There is no need to rule on the action;

2.	The applicant and the intervener shall bear their own costs and each pay half of those incurred by the defendant.

(1) OJ 2003 C 171.

30.4.2004

Official Journal of the European Union

C 106/65

ORDER OF THE COURT OF FIRST INSTANCE

of 11 February 2004

in Case T-304/03: Bayer AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

(Community trade mark - Opposition - Amicable resolution reached between the applicant for a Community trade mark and the proprietor of earlier national trade marks - No need for the case to proceed to judgment)

(2004/C 106/132)

Language of the case: German

In Case T-304/03: Bayer AG, having its registered office in Leverkusen (Germany), represented by M. Wolpert, Rechtsanwalt, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: J. Webendörfer and G. Schneider), the other party to the proceedings before the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) being: Sanofi-Synthelabo SA, having its registered office in Paris – appeal against the decision of 4 June 2003 by the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Case R 452/2002-4) concerning opposition proceedings between Bayer AG and Sanofi-Synthelabo SA - the Court (Fourth Chamber), composed of: H. Legal, President, V. Tiili and M. Vilaras, Judges; H. Jung, Registrar, made an order on 11 February 2004, the operative part of which is as follows:

(1)	There is no longer any need for the case to proceed to judgment.

(2)	The applicant, Bayer AG, shall bear its own costs and OHIM shall bear any costs which it may have incurred.

(1) OJ C 264 of 1.11.03.

30.4.2004

Official Journal of the European Union

C 106/65

ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

of 16 January 2004

In Case T-369/03 R: Arizona Chemical BV and Others v Commission of the European Communities

(Interim measures - Directive 67/548 EEC - Urgency)

(2004/C 106/133)

Language of the case: English

In Case T-369/03 R: Arizona Chemicals BV, established in Almere (Netherlands), Eastman Belgium BVBA, established in Kallo (Belgium), Resinall Europe BVBA, etablished in Brugge (Belgium), Cray Valley Iberica SA, established in Madrid (Spain), represented by C. Mereu and K. Van Maldegem, lawyers, against the Commission of the European Communities (Agents: X. Lewis and F. Simonetti) – application for, first, suspension of an act of the Commission dated 20 August 2003 and of the current entry for rosin under Annex I to Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ, English Special Edition 1967, p. 234) and, second, an order requiring the Commission to propose the declassification of rosin at the next Regulatory Committee meeting scheduled for the adaption of Directive 67/548 to technical progress – the President of the Court of First Instance has given an order on 16 January 2004, the operative part of which is as follows:

1.	The application for interim measures is dismissed.

2.	Costs are reserved.

30.4.2004

Official Journal of the European Union

C 106/66

Action brought on 22 December 2003 by Dr. Grandel GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-426/03)

(2004/C 106/135)

Language of the case to be determined pursuant to Article 131(2) of the Rules of Procedure — language in which the application was submitted: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 22 December 2003 by Dr. Grandel GmbH, Augsburg (Germany), represented by W. Göpfert, lawyer.

RE.LE.VI. S.p.A., Rodigo (Italy), was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

—	annul Decision R 2920/2001-4 of the Fourth Board of Appeal of 17 October 2003;

—	order OHIM to pay the costs of the proceedings.

Pleas in law and main arguments:

Applicant for Community trade mark:

The applicant

Community trade mark sought:

The word mark ‘GRAN’ goods in Classes 3, 5 and 30, (inter alia, cosmetics; pharmaceutical and sanitary preparations; pastries)

Proprietor of mark or sign cited in the opposition proceedings:

RE.LE.VI. S.p.A

Mark or sign cited in opposition.

The Italian, Greek and international word mark ‘GRANFORTE’ for goods in Classes 1, 3, 5 and 11

Decision of the Opposition Division:

rejection of the opposition

Decision of the Board of Appeal (1):

annulment of the decision of the Opposition Division and rejection of the application

Pleas in law:

—	Incorrect application of Article 8(1)(b) of Regulation (EC) No 40/94;

—	Incorrect determination of the protective scope of the conflicting marks,

—	Failure to have regard to Decision R 915/2001-4, by which the Community application for the word mark ‘GRANFORTE’ was rejected for goods similar to the goods in question here;

—	No risk of confusion.

(1) Decision R 920/2001 of the Fourth Board of Appeal of 10 September 2003.

30.4.2004

Official Journal of the European Union

C 106/66

Action brought on 9 January 2004 by ‘Almdudler-Limonade’ A. & S. Klein against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-12/04)

(2004/C 106/136)

Language of the case: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 9 January 2004 by ‘Almdudler-Limonade’ A. & S. Klein, of Vienna, represented by G. Schönherr, lawyer.

The applicant claims that the Court should:

—	give a decision in the case and amend Decision R 490/2003-2 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 5 November 2003 so that its Community trade mark application No 2 193 753 is allowed;

—	alternatively, set aside Decision R 490/2003-2 of the Second Board of Appeal of the Office for Harmonisation in the Internal Market of 5 November 2003 and remit the case to the Office for a fresh hearing and decision;

—	order the Office for Harmonisation in the Internal Market to pay the applicant's representative within 14 days the costs of these proceedings and those before the Board of Appeal.

Pleas in law and main arguments:

Community trade mark sought:

Three-dimensional mark in the shape of a lemonade bottle – Application No 2 193 753

Goods or services:

Goods in Class 32 (herbal lemonade)

Decision challenged before the Board of Appeal:

Registration rejected by the examiner

Decision of the Board of Appeal:

Appeal dismissed

Pleas in law:

—	The mark applied for displays more than the required minimum distinctiveness.

—	The relevant consumers are capable of distinguishing goods using this shape of packaging from goods of other commercial origin.

—	The distinctiveness is even greater if the contents of the bottle are taken into account.

30.4.2004

Official Journal of the European Union

C 106/67

Action brought on 22 January 2004 by Mühlens GmbH & Co. KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Case T-28/04)

(2004/C 106/137)

Language of the case to be determined pursuant to Article 131(2) of the Rules of Procedure — language in which the application was submitted: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 22 January 2004 by Mühlens GmbH & Co. KG, Cologne (Germany), represented by T. Schulte-Beckhausen, lawyer. Mr Mirco Cara, Trezzano Sul Naviglio, Milan (Italy), was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

—	annul the decision of the First Board of Appeal of OHIM of 20 November 2003 (Case R 10/2003-1);

—	order OHIM to pay the costs.

Pleas in law and main arguments:

Applicant for Community trade mark:

Mr Mirco Cara

Community trade mark sought:

Figurative mark ‘TOSKA LEATHER’ for goods in Classes 16, 18 and 25 (including books, bags and clothing for men, women and children in general) – Application No. 1 079 888

Proprietor of mark or sign cited in the opposition proceedings:

The applicant

Mark or sign cited in opposition.

The German word mark ‘TOSCA’ for perfumery (including ‘Parfum’, ‘Eau de Toilette’ and ‘Eau de Parfum Pour Femmes’

Decision of the Opposition Division:

Opposition upheld in respect of goods in Class 25. Opposition refused as to the remainder.

Decision of the Board of Appeal:

Applicant's appeal rejected.

Pleas in law:

The opposition on the basis of the mark cited (a well-known mark) was well founded under Article 8(1)(b) of Regulation (EC) No 40/94. (1)

likelihood of confusion between the conflicting signs.

similarity of the conflicting goods.

the mark cited in opposition is a mark which has a reputation within the meaning of Article 8(5) of Regulation (EC) 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).

30.4.2004

Official Journal of the European Union

C 106/68

Action brought on 29 January 2004 by Lichtwer Pharma AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-32/04)

(2004/C 106/138)

Language of the case to be determined pursuant to Article 131(2) of the Rules of Procedure — language in which the application was submitted: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 29 January 2004 by Lichtwer Pharma AG, represented by H.P. Kunz-Hallstein and R. Kunz-Hallstein, lawyers.

Laboratoire L. Lafon S.A., Maisons-Alfort (France), was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

—

annul paragraph 2 of the operative part of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 13 November 2003, that is to say, annul the decision insofar as the applicant was ordered to pay the fees and costs of both the opposition and the appeal proceedings;

—	order the Office to pay the costs.

Pleas in law and main arguments:

The applicant filed an application for registration of the word mark ‘Lyco-A’ in respect of goods in Classes 5, 29 and 30 (Application No 1 217 355). Laboratoire L. Lafon S.A., the proprietor of the French word mark ‘LYOC’ for goods in Class 5, filed notice of opposition to that registration. Laboratoire L. Lafon S.A. also filed two further notices of opposition based on the marks ‘LYCO PROTECT’ and ‘LYCO Q10’.

By decision of 30 October 2002, the Opposition Division rejected the opposition based on the mark ‘LYOC’ on the ground that there was no likelihood of confusion. On the same day, the opposition based on the mark ‘LYCO Q10’ was allowed.

In December 2002, Laboratoire L. Lafon S.A. informed the defendant that it intended to lodge an appeal against the decision given in the opposition proceedings concerning the mark ‘LYOC’. No appeal was lodged against the decision concerning the mark ‘LYCO Q10’.

In the contested decision, the Board of Appeal found that the appeal proceedings had become devoid of purpose as a result of the definitive refusal to register the mark sought. Moreover, the applicant was ordered to pay the fees and costs of both the preceding opposition proceedings and the appeal proceedings.

In support of its action, the applicant submits that a statement that the lodging of an appeal is envisaged is merely an expression of intention. Moreover, the Board of Appeal ought to have dismissed the appeal as inadmissible under Rule 49(1) of Regulation (EC) No 2868/95 (1) and ordered the appellant to pay the costs.

The applicant submits further that the granting of the opposition cannot lead to rejection of the mark ex tunc but only ex nunc and that the reasons given for the decision show that the Board of Appeal applied the wrong criteria for the purposes of Article 81(1) of Regulation (EC) No 40/94. (2) The decision therefore infringes substantive law. Moreover, in accordance with Rules 21 and 51 of Regulation (EC) No 2868/95, the defendant ought to have reimbursed the opponent for half of the opposition costs and all of the appeal costs.

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

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

30.4.2004

Official Journal of the European Union

C 106/68

Action brought on 28 January 2004 by Plus Warenhandelsgesellschaft mbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-34/04)

(2004/C 106/139)

Language of the case to be determined pursuant to Article 131(2) of the Rules of Procedure language in which the application was submitted: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 28 January 2004 by Plus Warenhandelsgesellschaft mbH, Mülheim an der Ruhr (Germany), represented by B. Piepenbrink, lawyer.

Joachim Bälz and Friedmar Hiller, Stuttgart (Germany), were also parties to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

—	annul the decision of the Second Board of appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 25 November 2003 (Case R 620/2002-2) and cancel the registration of the mark ‘Turkish Power’ sought in Application No 1 873 561;

—	order the Office to pay the costs.

Pleas in law and main arguments:

Applicant for Community trade mark:

Joachim Bälz and Friedmar Hiller

Community trade mark sought:

The figurative mark ‘Turkish power’ for goods in Classes 3, 25, 28, 32, 33 and 34 (inter alia, tobacco, smokers' articles, matches) – Application No 1 873 561

Proprietor of mark or sign cited in the opposition proceedings:

The applicant (formerly Tengelmann Warenhandelsgesellschaft)

Mark or sign cited in opposition.

The German word mark ‘POWER’ for goods in Class 34 (inter alia, tobacco, smokers' articles, matches)

Decision of the Opposition Division:

Rejection of the opposition

Decision of the Board of Appeal:

Dismissal of the applicant's appeal

Pleas in law:

—	The Board of Appeal erred in law in its application of Article 8(1)(b) of Regulation (EC) No 40/94.

—	Not only does the mark cited in opposition have, in itself, normal distinctive character but it has also been reinforced by extensive use as a mark.

—	There is a likelihood of confusion given that the distinctive components of the opposed marks are identical.

30.4.2004

Official Journal of the European Union

C 106/69

Action brought on 5 February 2004 by Orsay GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

(Case T-39/04)

(2004/C 106/140)

Language of the case to be determined pursuant to Article 131(2) of the Rules of Procedure language in which the application was submitted: German

An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 5 February 2004 by Orsay GmbH, Willstätt (Germany), represented by D. von Schultz, lawyer.

José Jiménez Arellano S.A., Madrid, was also a party to the proceedings before the Board of Appeal.

The applicant claims that the Court should:

—

annul Decision R 394/2002-4 of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 3 November 2003 and Decision 405/2002 of the Opposition Division of the Office for Harmonisation in the Internal Market of 25 February 2002 insofar as registration of the Community trade mark sought in Application No 1 042 613 in respect of articles of clothing; boots, shoes and slippers; headgear was refused on the basis of Opposition No B 242 059;

—	declare that the Office for Harmonisation in the Internal Market is to register the mark ‘O orsay’, sought in Application No 1 042 613 as a Community trade mark in respect of articles of clothing; boots, shoes and slippers; headgear in Class 25;

—	order the office for Harmonisation in the Internal Market to pay the costs of the opposition and appeal proceedings and of the present action.

Pleas in law and main arguments:

Applicant for Community trade mark:

The applicant

Community trade mark sought:

The figurative mark ‘O orsay’ for goods in Classes 23, 24 and 25 (yarn, woven and knitted fabric; bed and table covers; articles of clothing; boots, shoes and slippers; headgear) – Application No 1 042 613

Proprietor of mark or sign cited in the opposition proceedings:

José Jiménez Arellano S.A.

Mark or sign cited in opposition.

The Spanish and Portuguese figurative mark ‘D'ORSAY’ for, inter alia, goods in Class 25

Decision of the Opposition Division:

Refusal of the application for registration in respect of the goods ‘articles of clothing; boots, shoes and slippers; headgear’. Rejection of the remainder of the opposition.

Decision of the Board of Appeal:

Dismissal of the applicant's appeal

Pleas in law:

—	The Office's decision was adopted in breach of Article 8(1) of Regulation (EC) No 40/94.

—	There can be no likelihood of confusion in aural terms where the opposed marks ‘O orsay’ and ‘D'ORSAY’ are compared.

—	Both a likelihood of confusion as a result of the typography and a likelihood of association can be ruled out.

30.4.2004

Official Journal of the European Union

C 106/70

Action brought on 13 February 2004 by Gela Sviluppo S.C.p.A. (in liquidation) against the Commission of the European Communities

(Case T-65/04)

(2004/C 106/141)

Language of the case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 13 February 2004 by Gela Sviluppo S.C.p.A. (in liquidation), represented by Patrizio Menchetti, lawyer.

The applicant claims that the Court should:

—	annul the Commission decision in the communication of 16 December 2003, ref. 116515 Regio E2/JHR/rs D(2003) 621494, refusing the application for payment of the balance of the financing of the global grant for Gela Sviluppo;

—	cancel the Commission decision reducing the financing of the global grant for Gela Sviluppo, Sicily 94-99 ERDF 98.05.26.001;

—	annul the Commission decision writing off the sum of EUR 2 348 580.42 from the balance sheet;

—	annul the Commission decision in the debit note for the sum of EUR 85 806.66, for repayment of the surplus paid;

—	if Article 6.2 of the Guidelines for the financial closure of operational assistance (1994—1999) of the Structural Funds adopted by Decision (ESA) 1999/1316 of 9/9/1999 is considered part of a decision within the meaning of Article 249 EC, annul that decision;

—

establish the non-contractual liability of the Commission with respect to failure to pay the final balance of the financing of the global grant for Gela Sviluppo, Sicily 94/99 ERDF 98.05.26.001, and order the Commission to compensate for damage under Article 235 EC and Article 288 ECin the sum of EUR 2 348 580.42, plus interest, or to an extent considered fair;

—

establish the breach of contract and the contractual liability of the Commission in relation to the agreement signed on 13.09.1999 by Gela Sviluppo and the European Commission, recognised by the Region of Sicily, and amended on 31.05.2002, also recognised by the Region of Sicily, declare that the sum of EUR 85 806.66 is not payable by the Commission, order the Commission to perform its contractual obligations with regard to the payment of the sum of EUR 2 262 777.76 or to compensate for damage in the same amount, or to an extent considered fair;

—	order the Commission to pay the costs.

Pleas in law and main arguments:

The action relates to the Commission decision not to pay the final balance of the financing of the global grant for Gela Sviluppo, Sicily 94—99 ERDF 98.05.26.001, and to demand the sum already paid of EUR 85 806 66.

The applicant pleads:

—	the Commission did not give an adequate statement of reasons for the decisions reducing the financing, or for Decision (ESA) 1999/1316 of 9.9.1999;

—

the Commission was in breach of the principle of due process because it refused to take action in relation to the applicant's request to be heard, and of the principles of legitimate expectations, proportionality and legal certainty concerning that reduction, and finally of essential procedural requirements in relation to the presentation of Decision (ESA) 1999/1316 of 9/9/1999;

—	unlawfulness of the method of calculation used by the Commission for the closure of the final balance;

—	the non-contractual liability of the Commission by reason of infringement of the principle of legitimate expectations, good administrative practice and the rules governing the management of the financing of the structural funds;

—	the contractual liability of the Commission in relation to the agreement signed by the Commission, Gela Sviluppo and the Region of Sicily, in breach of Articles 1453,1175 and 1375 of the Italian Civil Code.

30.4.2004

Official Journal of the European Union

C 106/71

Action brought on 20 February 2004 by SGL Carbon AG against the Commission of the European Communities

(Case T-68/04)

(2004/C 106/142)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 20 February 2004 by SGL Carbon AG, Wiesbaden (Germany), represented by Martin Klusmann and Andreas von Bonin, lawyers.

The applicant claims that the Court should:

—	annul Commission Decision C(2003) 4457 final of 3 December 2003 in so far as it concerns the applicant;

—	in the alternative, reduce appropriately the amount of the fine imposed on the applicant in the contested decision;

—	order the defendant to pay the costs.

Pleas in law and main arguments:

In the contested decision the Commission imposed on the applicant a fine in the sum of EUR 23 640 000 for infringement of Article 81(1) EC and Article 53(1) EEA by taking part in a series of agreements and concerted practices on the market in carbon and graphite-based products for electrical and mechanical applications.

In support of its action, the applicant claims, first, that the basic amount of the fine was incorrectly determined to its detriment. In addition, the applicant pleads that the Commission failed to have regard to the upper limit of 10 % for the fine laid down in Article 15(2) of Regulation 17/62 (1) through the imposition of several separate fines of an amount exceeding 10 % of the group turnover. The applicant was also adversely affected by the unjustified application of the 10 % upper limit in favour of another undertaking which has a group relationship with a third undertaking. According to the applicant, the Commission also incorrectly assessed the cooperation of the applicant and in this respect reduced the fine by too little, and incorrectly took into consideration the actual deterrent effect in fixing the amount of the fine. The applicant also claims that the Commission wrongfully refused to take into account the applicant's inability to pay when calculating the fine. Finally, the applicant contests the assessment of the amount of interest in respect of pending proceedings and default interest in the contested decision.

(1) EEC Council: Regulation No 17: First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959—1962, p. 87).

30.4.2004

Official Journal of the European Union

C 106/71

Action brought on 20 February 2004 by Schunk GmbH and Schunk Kohlenstofftechnik GmbH against the Commission of the European Communities

(Case T-69/04)

(2004/C 106/143)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 20 February 2004 by Schunk GmbH, Thale (Germany), and Schunk Kohlenstofftechnik GmbH, Heuchelheim (Germany), represented by Rainer Bechtold and Simon Hirsbrunner, lawyers.

The applicants claim that the Court should:

—	annul the contested decision of the Commission of 3 December 2003 (Case COMP/E-2/38.359 — carbon and graphite-based products for electrical and mechanical applications);

—	in the alternative, reduce the amount of the fine imposed on the applicants by that decision;

—	order the Commission to pay the costs.

Pleas in law and main arguments:

In the contested decision the Commission imposed on the applicants a fine in the sum of EUR 30 870 000 for infringement of Article 81(1) EC and Article 53(1) EEA by taking part in a series of agreements and concerted practices on the market in carbon and graphite-based products for electrical and mechanical applications.

In support of their action, the applicants claim, first, that the Commission erred in law by assuming that the first applicant, Schunk GmbH, which is a finance holding company, is jointly and severally liable for the fine imposed on its subsidiary, the second applicant, Schunk Kohlenstofftechnik GmbH (‘SKT’). Further, they plead that the contested decision has an unlawful legal basis, since Article 15 of Regulation 17/62 (1) gives the Commission a margin of discretion in relation to the amount of fines and is therefore incompatible with the principle of legal certainty and with higher ranking Community law. In addition, the Commission discriminated against the applicants relative to other undertakings in fixing the amount of the imposed fines, incorrectly assessed the deterrent effect of the fines and the cooperation of the applicants, and failed to have regard to material circumstances.

(1) EEC Council: Regulation No 17: First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959—1962, p. 87).

30.4.2004

Official Journal of the European Union

C 106/72

Action brought on 20 February 2004 by Le Carbone Lorraine S.A. against the Commission of the European Communities

(Case T-73/04)

(2004/C 106/144)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 20 February 2004 by Le Carbone Lorraine S.A, having its registered office in Paris, represented by Antoine Winckler and Me Igor Simic, lawyers.

The applicant claims that the Court should:

—	annul the decision adopted by the Commission on 3 December 2003 in Case COMP/38.359 in so far as it concerns Le Carbone Lorraine S.A;

—	in the alternative, annul or reduce the amount of the fine imposed on it by that decision;

—	order the Commission to pay all the costs.

Pleas in law and main arguments:

In the contested decision, the Commission imposed on the applicant a fine of 43 050 000 euros for taking part, with five other undertakings, in a cartel on the market in carbon and graphite-based products for electrical and mechanical applications.

In support of its action, the applicant claims first that the Commission erred in law by not defining the relevant markets for the products at issue. The applicant also pleads breach of the principles of proportionality and legitimate expectations concerning the setting of the ‘starting amount’ of the fine in question. The Commission was also in breach of the principle of legal certainty by increasing the ‘starting amount’ of 105 % in relation to the duration of the breach. In addition, the applicant complains that the Commission did not take account of mitigating circumstances in its favour and did not allow it the maximal reduction provided for its alleged cooperation in the enquiry. The Commission was in breach of the principle of equal treatment by not allowing the applicant a reduction in respect of the impact on it of a series of crushing fines in the same field of activity, whereas it allowed another undertaking concerned such a reduction on those grounds.

30.4.2004

Official Journal of the European Union

C 106/72

Action brought on 17 February 2004 by Arch Chemicals, Inc., and Arch Timber Protection Limited against the Commission of the European Communities

(Case T-75/04)

(2004/C 106/145)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 17 February 2004 by Arch Chemicals, Inc., Norwalk, Connecticut, USA and Arch Timber Protection Limited, Castleford, United Kingdom, represented by Mr K. Van Maldegem and Mr C. Mereu, lawyers.

The applicants claims that the Court should:

—

order the annulment of Article 3 (and annex II), Article 4(2), Article 5(3), Article 10(2), second paragraph, Article 11(3), Article 13 and Article 14(2) of Commission Regulation (EC) No 2032/2003 of 4 November 2003 on the second phase of the 10-year work programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and of the Council concerning the placing of biocidal products on the market, and amending Regulation (EC) No 1896/2000;

—	declare the illegality and the inapplicability vis-à-vis the applicant of Articles 9(a), 10(3), 11 and 16(1) of Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market;

—

declare the illegality and the inapplicability vis-à-vis the applicant of Article 6(2) of Commission Regulation (EC) No 1896/2000 of 7 September 2000 on the first phase of the programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and of the Council on biocidal products;

—	order the defendant to compensate the applicant in the provisional amount of 1Euro for damages suffered as a result of the adoption and entry into force of the contested measure, as well as any applicable interest, pending the exact calculation and determination of the exact amount;

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

Pleas in law and main arguments:

The applicants are producers of biocide active substances and of biocidal products, namely, non-agricultural pesticidal products, containing these active substances. The applicants hold marketing authorisations in several Member States and many of their products are protected through intellectual property rights.

In accordance with Directive 98/8/EC (1) and Commission Regulation (EC) No 1896/2000 (2), the applicants notified their active substances and product type combinations and, therefore, became participants in the review programme within the meaning of Commission Regulation (EC) No 2032/2003 (3). Under the rules of the second stage of the review programme, the applicants are obliged to develop expensive proprietary data, such as scientific studies and risk assessments, and submit these data to a designated Rapporteur Member State.

The applicants seek the annulment of Article 4(2) of Regulation No 2032/2003 because it fails to set a deadline by which companies other than the participants' can no longer market biocidal products notified by participants and listed in annex II to the regulation. Furthermore, according to the applicants, Article 3(2) and annex II of Regulation No 2032/2003 fail to list the names of the applicants as participants for their notified active substances and product type combinations. Also, the applicants seek the annulment of Article 5(3) and preamble 10 of Regulation No 2032/2003 because it allows companies who are not participants, to apply for the inclusion of an active substance or product type combination under more favourable conditions. The applicants also contest Article 10(2), second paragraph, of Regulation No 2032/2003 because it allows the Rapporteur Member State to take into account additional information submitted by others. The applicants also object to the fact that Article 11(3) and preamble 18 allow the defendant to conduct unilaterally a comparative assessment of active substances and product type combinations before the conclusion of the review. Article 13 and preamble 20 are being contested by the applicants in that they allow the defendant to suspend or stop the review on the basis of a proposal of the defendant submitted under Directive 76/769/EEC (4). Hereby, a hazard-based assessment would be preferred over the sector specific risk assessment of Directive 98/8/EC concerning the placing of biocidal products on the market. Finally, the applicants seek annulment of Article 14(2) because it retroactively and without a proper reasoning amends the notification rules contained in Regulation No 1896/2000, thus changing a decisive factor for the applicants for participation in the review programme.

In support of their application, the applicants submit that the defendant misused its powers under Directive 98/8/EC by implementing the directive in a way that goes beyond the text of the directive and changes the applicants' rights and expectations. The applicants furthermore claim that the defendant had no competence to introduce in Regulation No 2032/2003 the contested provisions without consulting the European Parliament and the Council. According to the applicants, Directive 98/8/EC should have been modified in order to introduce these provisions.

The applicants also submit that the defendant violated the EC Treaty and principles of Community Law, such as the Treaty provisions on fair competition, the principles of undistorted competition, legal certainty and legitimate expectations, proportionality, non-discrimination, the right to property, the right to pursue a trade and, finally, the supremacy of international agreements, specifically the protection of intellectual property rights under the TRIPs agreement.

In support of their application, the applicants also submit a plea of illegality against Article 6(2) of Regulation No 1896/2000 and Articles 9(a), 10(3), 11 and 16(1) of Directive 98/8/EC.

The applicants state that Article 6(2) of Regulation No 1896/2000 forms the basis of the contested Articles 3 and 4(2), as well as annex II, of Regulation No 2032/2003 and sets the rule that notified active substance or product type combinations can be freely marketed by any other company which has neither access to the applicants' protected data, nor has developed an equivalent data set. The applicants claim that Article 6(2) of Regulation No 1896/2000 ignores the data protection provisions of Directive 98/8/EC and that the defendant misused its powers and lacked the competence to adopt it.

The applicants state furthermore that Articles 9(a), 10(3) and 11 of Directive 98/8/EC are related to the contested Article 3 and annex II of Regulation No 2032/2003. According to the applicants, Article 9(a) of Directive 98/8/EC is illegal because it discriminates between active substances that were on the market before 14 May 2000 and active substances that were not on the market on that date, therefore causing unfair competition. Furthermore, the applicants submit that Articles 9(a), 10(3), 11 and 16(1) of Directive 98/8/EC are inconsistent with other provisions of that directive. Specifically, they fail to establish, contrary to Article 12 and 27 of Directive 98/8/EC, a transparent link between the applicants and their notified active substance or product type combinations. Finally, the applicants claim that Article 16(1) of Directive 98/8/EC should be declared illegal so that Member States are no longer allowed to continue applying their pre-existing legislation for maintaining biocidal product registrations that are not supported by a notification at the Community level.

(1) Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market (OJ L 123, p. 1).

(2) Commission Regulation (EC) No 1896/2000 of 7 September 2000 on the first phase of the programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and of the Council on biocidal products (OJ L 228, p. 6).

(3) Commission Regulation (EC) No 2032/2003 of 4 November 2003 on the second phase of the 10-year work programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and of the Council concerning the placing of biocidal products on the market, and amending Regulation (EC) No 1896/2000 (OJ L 307, p. 1).

(4) Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (OJ L 262, p. 201).

30.4.2004

Official Journal of the European Union

C 106/74

Action brought on 17 February 2004 by Bactria Industriehygiene-Service Verwaltungs GmbH against the Commission of the European Communities

(Case T-76/04)

(2004/C 106/146)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 17 February 2004 by Bactria Industriehygiene-Service Verwaltungs GmbH, Kirchheimboladen, Germany, represented by Mr K. Van Maldegem and Mr Claudio Mereu, lawyers.

The applicant claims that the Court should:

—

—	declare the illegality and the inapplicability vis-à-vis the applicant of Articles 9(a), 10(3), 11 and 16(1) of Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market;

—

—	order the defendant to compensate the applicant in the provisional amount of 1 Euro for damages suffered as a result of the adoption and entry into force of the contested measure, as well as any applicable interest, pending the exact calculation and determination of the exact amount;

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

Pleas in law and main arguments:

The pleas in law and arguments invoked by the applicant are the same as those invoked in Case T-75/04.

30.4.2004

Official Journal of the European Union

C 106/75

Action brought on 17 February 2004 by Rhodia Consumer Specialties Limited against the Commission of the European Communities

(Case T-77/04)

(2004/C 106/147)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 17 February 2004 by Rhodia Consumer Specialties Limited, Watford (United Kingdom), represented by K. Van Maldegem and C. Mereu, lawyers.

The applicant claims that the Court should:

—

—	declare the illegality and the inapplicability vis-à-vis the applicant of Articles 9(a), 10(3), 11 and 16(1) of Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market;

—

—	order the defendant to compensate the applicant in the provisional amount of 1 euro for damages suffered as a result of the adoption and entry into force of the contested measure, as well as any applicable interest, pending the exact calculation and determination of the exact amount;

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

Pleas in law and main arguments:

The pleas in law and arguments invoked by the applicant are the same as those invoked in Case T-75/04.

30.4.2004

Official Journal of the European Union

C 106/75

Action brought on 17 February 2004 by Sumitomo Chemical (UK) PLC against the Commission of the European Communities

(Case T-78/04)

(2004/C 106/148)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 17 February 2004 by Sumitomo Chemical (UK) PLC, London, United Kingdom, represented by Mr K. Van Maldegem and Mr C. Mereu, lawyers.

The applicant claims that the Court should:

—

—	declare the illegality and the inapplicability vis-à-vis the applicant of Articles 9(a), 10(3), 11 and 16(1) of Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market;

—

—	order the defendant to compensate the applicant in the provisional amount of 1 Euro for damages suffered as a result of the adoption and entry into force of the contested measure, as well as any applicable interest, pending the exact calculation and determination of the exact amount;

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

Pleas in law and main arguments:

The pleas in law and arguments invoked by the applicant are the same as those invoked in Case T-75/04.

30.4.2004

Official Journal of the European Union

C 106/76

Action brought on 17 February 2004 by Troy Chemical Company BV against the Commission of the European Communities

(Case T-79/04)

(2004/C 106/149)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 17 February 2004 by Troy Chemical Company BV, Maassluis, (Netherlands), represented by K. Van Maldegem and C. Mereu, lawyers.

The applicant claims that the Court should:

—

—	declare the illegality and the inapplicability vis-à-vis the applicant of Articles 9(a), 10(3), 11 and 16(1) of Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market;

—

—	order the defendant to compensate the applicant in the provisional amount of 1 euro for damages suffered as a result of the adoption and entry into force of the contested measure, as well as any applicable interest, pending the exact calculation and determination of the exact amount;

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

Pleas in law and main arguments:

The pleas in law and arguments invoked by the applicant are the same as those invoked in Case T-75/04.

30.4.2004

Official Journal of the European Union

C 106/76

Action brought on 21 February 2004 by Bouygues SA and Bouygues Télécom against Commission of the European Communities

(Case T-81/04)

(2004/C 106/150)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 21 February 2004 by Bouygues SA, having its registered office in Paris, and Bouygues Télécom, having its registered office in Boulogne Billancourt (France), represented by Bernard Amory and Alexandre Verheyden, lawyers.

The applicants claim that the Court should:

—	declare that, by failing to define its position within the period of two months commencing on the date of the letter of formal notice of 12 November 2003, the Commission has failed to act;

—	in the alternative, declare the Commission's definition of its position of 11 December 2003 to be void;

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

Pleas in law and main arguments:

The subject-matter of this action is the complaint lodged by the applicants with the defendant concerning inter alia the aid granted by the French State to ORANGE FRANCE and SFR by way of a retroactive reduction in the royalty payments of EUR 4 955 000 000 which each of those operators had undertaken to pay in exchange for the Universal Mobile Telecommunications System (‘UMTS’) licence awarded to them on 15 June 2001. The other complaints raised by the applicants related to:

—	the making available on an exclusive basis of FRANCE TELECOM outlets for the benefit of ORANGE FRANCE;

—	the exceptional arrangements for commercial tax applying to FRANCE TELECOM;

—	the reduction in liability for pension charges and the exemption from unemployment benefit contributions granted to FRANCE TELECOM;

—	the French rules relating to universal service;

—	the treatment of dividends paid by FRANCE TELECOM;

—	the measures of financial support granted to FRANCE TELECOM.

As regards the action for a declaration of failure to act, the applicants claim that the Commission has still not defined its position in relation to the UMTS complaint, which was none the less the subject of the letter of formal notice, and that the letter of 11 December 2003 sent to them by the Commission in response to their letter of formal notice cannot amount to a definition of its position in terms of Article 232 EC. That letter simply noted that the consideration of measures potentially amounting to State aid for the benefit of FRANCE TELECOM was one of the Commission's priorities, without stating an opinion on the merits of the complaint in question. Accordingly, having regard to the omissions in its reasoning, that letter could not be treated as having remedied the failure to act.

As regards the application brought in the alternative for a declaration of invalidity relating to the decision of 11 December 2003 which dismissed the complaint, the applicants rely on three pleas in law based on:

—	breach of the duty to state reasons;

—	a manifest error of assessment under Article 87 EC et seq., in that the retroactive reduction in the amount of UMTS royalties which ORANGE FRANCE and SFR had originally undertaken to pay met all the requirements of a measure constituting State aid;

—	a breach of the procedural rules laid down in Article 88(3) EC, in that the Commission wrongly decided, having regard to the circumstances of the case, not to initiate the formal investigation procedure laid down under that provision.

30.4.2004

Official Journal of the European Union

C 106/77

Action brought on 20 February 2004 by Axiom Medical, Inc. against the Office for Harmonisation in the Internal Market

(Case T-84/04)

(2004/C 106/151)

Language of the case: German

An action against the Office for Harmonisation in the Internal Market was brought before the Court of First Instance of the European Communities on 20 February 2004 by Axiom Medical, Inc., Rancho Dominguez (USA), represented by R. Köbbing, lawyer.

The applicant claims that the Court should:

—	annul Decision R 193/2002-1 of the First Board of Appeal of 17 December 2003;

—	in the alternative, annul Decision R 193/2002-1 in respect of the goods in Class 10;

—	order the defendant to pay the costs.

Pleas in law and main arguments:

Applicant for Community trade mark:	The applicant
Community trade mark sought:	Word mark ‘ATRAUM’ for goods in Class 5 (wound dressings) and Class 10 (medical devices etc.) – Application No 11405588
Proprietor of mark or sign cited in the opposition proceedings:	Paul Hartmann Akteingesellschaft
Mark or sign cited in opposition.	National and international mark ‘Atrauman’ for goods in Class 5
Decision of the Board of Appeal:	Dismissal of the applicant's appeal
Decision of the Opposition Division:	Rejection of the opposition
Pleas in law:	Infringement of Article 8(1)(b) of Regulation No 40/94

30.4.2004

Official Journal of the European Union

C 106/78

Action brought on 1 March 2004 by Guido Strack against the Commission of the European Communities

(Case T-85/04)

(2004/C 106/152)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 1 March 2004 by Guido Strack, Wasserliesch (Germany), represented by J. Mosar, Rechtsanwalt.

The applicant claims that the Court should:

—	set aside the reporting procedure for the years 2001 to 2002 so far as the applicant is concerned;

—	set aside the report made in his regard (REC/CDR) — including the view expressed by his previous hierarchical superior and the decision of the appointing authority (R/432/03) of 24 November 2003 — for the period from 1 July 2001 to 31 December 2002;

—	Order the defendant to pay all costs relating to the proceedings.

Pleas in law and main arguments:

In support of his application, the applicant first pleads that the report concerning him is stored in electronic form in the new computer system of the Commission's personnel division and thus constitutes a parallel personal file which infringes Article 26 of the Staff Regulations. The use of the new computer system also contravenes the requirement in Article 25 of the Staff Regulations that documents be in written form.

The applicant submits further that the reporting procedure infringes Article 43 of the Staff Regulations, Article 8 of the Commission Decision of 26 April 2002 on general implementing provisions for Article 43, the principle of equality, the prohibition of discrimination, the duty to state reasons and the prohibition of arbitrary action. The requirement that legitimate expectations be protected, the ‘patere legem quam ipse fecisti’ rule, the Commission's duty to protect the interests of its officials, the audi alteram partem rule and the principles of fair administrative procedure have also been infringed by the contested reporting procedure, including the appeal proceedings brought by the applicant.

30.4.2004

Official Journal of the European Union

C 106/78

Action brought on 1 March 2004 by Milagros Irene Arranz Benítez against the European Parliament

(Case T-87/04)

(2004/C 106/153)

Language of the case: French

An action against the European Parliament was brought before the Court of First Instance of the European Communities on 1 March 2004 by Milagros Irene Arranz Benítez, residing in Brussels, represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, avocats, with an address for service in Luxembourg.

The applicant claims that the Court of First Instance should:

—	annul the decision of the Head of the European Parliament's ‘Individual Rights’ Division of 15 April 2003;

—	order the European Parliament to pay the costs.

Pleas in law and main arguments

By the contested act the Parliament decided to take into consideration, for the purpose of calculating the tax abatement provided for by Article 3 of Regulation 260/68 (1) and the expatriation allowance payable to the applicant, two only of her children, on the ground that actual maintenance of the children was shared between the applicant and her former husband, who is also an official and entitled to the same allowances. The applicant challenges this decision, claiming that she alone actually maintains the children, given that the monthly contribution paid by her former husband for each child is less than the threshold laid down by the conclusions of the Group of the Heads of Administration and is not, in any case, of such an amount that the children can be regarded as being dependent on their father, given the latter's grade and his posting outside the Communities.

(1) Regulation (EEC, Euratom, ECSC) of the Council of 29 February 1968 laying down the conditions and procedure for applying the tax for the benefit of the European Communities (OJ, English Special Edition 1968 II, p. 37).

30.4.2004

Official Journal of the European Union

C 106/79

Action brought on 3 March 2004 by Marie Tzirani against Commission of the European Communities

(Case T-88/04)

(2004/C 106/154)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 3 March 2004 by Marie Tzirani, represented by Eric Boigelot, lawyer.

The applicant claims that the Court should:

—	annul the decision of the Commission of 23 May 2003 to reject the applicant's candidature for the post of A2 as Director of ADMIN.C ‘Social policy, Luxembourg staff, health and safety’;

—	annul the appointment of another official to that post;

—	in so far as necessary, annul the implied rejection of the applicant's complaint, which was lodged on 7 August 2003 and registered under number R/461/03;

—	order the defendant to pay the costs.

Pleas in law and main arguments

In support of her application, the applicant alleges infringement of Articles 7, 14, 25(2), 29(1)(a) and 45 of the Staff Regulations and infringement of the rules on the appointment of officials at grade A1 and A2, misuse of powers and failure to observe general principles of law, such as the principle of legality, principle that officials should have reasonable career prospects, equal treatment and, finally, the principles requiring the appointing authority to adopt decisions only on the basis of legally permissible grounds, that is to say grounds which are relevant and free from manifest errors of assessment.

30.4.2004

Official Journal of the European Union

C 106/80

Action brought on 3 March 2004 by Alexander Just against the Commission of the European Communities

(Case T-91/04)

(2004/C 106/156)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 3 March 2004 by Alexander Just, residing in Hoeilaart (Belgium), represented by G. Leibitsch, lawyer.

The applicant claims that the Court should:

—	declare void and annul the decision of the selection board of open competition COM/A/2/02 of 22 April 2003 by which the applicant was refused admission to the next stage of the selection procedure on the basis of the results of the preliminary test;

—	declare void and annul the decision of the selection board of the appointing authority of 25 November 2003 on the applicant's complaint of 11 July 2003 under Article 90(2) of the Staff Regulations;

—	order the defendant to pay the costs.

Pleas in law and main arguments

The applicant took part in the tests for open competition COM/A/2/02 to constitute a reserve of assistant administrators in the field of ‘environment’. He was informed by the selection board that the result he had obtained in all the tests was insufficient to admit him to the next stage of the selection procedure. In support of his action the applicant submits that some of the questions in test ‘a)’ were incorrect. If those questions had been annulled, the applicant would have achieved the necessary marks for admission to the next stage.

30.4.2004

Official Journal of the European Union

C 106/80

Action brought on 4 March 2004 by Theodoros Kallianos against Commission of the European Communities

(Case T-93/04)

(2004/C 106/157)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 4 March 2004 by Theodoros Kallianos, residing in Kraainem (Brussels), represented by Guy Archambeau, lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

—	annul the decision of the appointing authority of 2 December 2003 replying to the complaint brought by Mr Kallianos under No R/335/03 of 2 July 2003;

—

call on the Commission to repay to Mr Kallianos the whole of the pay and amounts withheld which it applied without being entitled to do so in respect of the remuneration payable to Mr Kallianos from the date on which he was granted a divorce by judgment No 2179/1999 of the Court of First Instance, Athens, of 8 March 1999, including indexation of the amount overpaid in aliment on the unilateral decision of 18 September 2002 adopted by the Commission (PMO –department concerned with salaries) or at the very least from judgment No 203/2003 delivered by the Court of Cassation of Greece on 7 February 2003 and of which it was aware;

—	order the Commission to pay to the applicant 20 % of the abovementioned amount by way of damages for the material and non-material damage suffered, including the legal costs incurred;

—	order the Commission to pay the costs of effecting service including the costs of translation of the Greek judgments into French, documents which were in any event made available to the Commission in good time, amounting to EUR 1 500;

—	order the Commission to pay the costs of these proceedings and for the expenditure incurred.

Pleas in law and main arguments

The applicant is an official working at the Commission. Following an order of the Court of First Instance, Brussels, fixing maintenance payments payable to the applicant's spouse, the Commission began to withhold part of the applicant's salary. By his application, the applicant is challenging the amount withheld alleging error of law and of fact, absence of an enforcement order justifying the withholding of those amounts and infringement of Regulation No 1347/2000 (1).

(1) Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses Official Journal L 160, 30/06/2000 p. 19.

30.4.2004

Official Journal of the European Union

C 106/81

Action brought on 27 February 2004 by the European Environmental Bureau, PAN-Europe, the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers's Associations (IUF), the European Federation of Trade Unions in the Food Agricultural and Tourism Sectors and Allied Branches (EFFAT), Stichting Natuur en Milieu and Svenska Naturskyddsföreningen (Swedish Society for Nature Conservation) against the Commission of the European Communities

(Case T-94/04)

(2004/C 106/158)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 27 February 2004 by the European Environmental Bureau, Brussels (Belgium), PAN-Europe, London (United Kingdom), the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers's Associations (IUF), Geneva (Switzerland), the European Federation of Trade Unions in the Food Agricultural and Tourism Sectors and Allied Branches (EFFAT), Brussels (Belgium), Stichting Natuur en Milieu, Utrecht (Netherlands), and Svenska Naturskyddsföreningen (Swedish Society for Nature Conservation), Stockholm (Sweden), represented by P. van den Biesen and B. Arentz, lawyers.

The applicant claims that the Court should:

—	annul Commission Directive 2003/112/EC

—	Order the Commission to pay the costs of these proceedings;

Pleas in law and main arguments:

The contested measure, Commission Directive 2003/112 (1), amended Directive 91/414 (2) so as to include a herbicide called ‘Paraquat’ in Annex 1 of Directive 91/414. Article 4 of Directive 91/414 states that only plant protection products containing substances listed in Annex 1 may be authorised by Member States. Thus, the effect of the contested measure is that Member States will in future be bound to authorise plant protection products containing ‘Paraquat’.

The applicants request the court to annul the contested directive, claiming that in adopting it the Commission violated Directive 91/414 as well as the precautionary principle in matters of environmental policy provided for in Article 174 para. 2 of the EC treaty. They claim further that the contested directive also violated Directive 79/409 (3)Official Journal L 103, 25/04/1979 P. 1 - 18, since it failed to take into account the effects of ‘Paraquat’ on birds.

(1) Commission Directive 2003/112/EC of 1 December 2003 amending Council Directive 91/414/EEC to include paraquat as an active substance, Official Journal L 321, 06/12/2003 P. 32 - 35.

(2) Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market, Official Journal L 230, 19/08/1991 P. 1-32.

(3) Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds.

30.4.2004

Official Journal of the European Union

C 106/81

Action brought on 8 March 2004 by Luciano Lavagnoli against Commission of the European Communities

(Case T-95/04)

(2004/C 106/159)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 8 March 2004 by Luciano Lavagnoli, residing in Berchem (Luxembourg), represented by Gilles Bounéou and Frédéric Frabetti, lawyers.

The applicant claims that the Court should:

—	annul the 1999—2001 promotions procedure so far as concerns the applicant;

—	in the alternative, annul the applicant's staff report in respect of the period 1 July 1999 to 30 June 2001 and, as a preliminary matter, the preparatory acts preceding that report;

—	make an appropriate finding as to the costs, expenditure and fees incurred and order the Commission to pay them.

Pleas in law and main arguments

The applicant is challenging the decision of the appointing authority establishing his staff report for the period 1999—2001.

In support of his application, the applicant alleges:

—	infringement of the general provisions implementing Article 43 of the Staff Regulations and breach of the principles of non-discrimination and sound administration;

—	infringement of the 1974 Framework Agreement signed by Action & Défense, of which the applicant was the secretary general during the reference period, and of Article 24a of the Staff Regulations, and interference with the freedom of association;

—	infringement of the agreement protocol signed on 18 May 1998 by the Commission and the unions;

—	disregard of the principle prohibiting arbitrary action and requiring reasons to be provided for decisions, and misuse of powers;

—	breach of the principle that legitimate expectations are to be protected;

—	failure to fulfil the duty to have regard for the welfare of officials.

30.4.2004

Official Journal of the European Union

C 106/82

Action brought on 5 March 2004 by Michael Cwik against the Commission of the European Communities

(Case T-96/04)

(2004/C 106/160)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 5 March 2004 by Michael Cwik, residing at Tervuren (Belgium), represented by Nicolas Lhoëst, avocat, with an address for service in Luxembourg.

The applicant claims that the Court of First Instance should:

—	annul he decision of the Director General of DG ECFIN of 24 April 2003 confirming without amendment the applicant's career development report for the period from 1 July 2001 to 31 December 2002;

—	annul, so far as is necessary, the Commission's decision of 19 November 2003 rejecting the applicant's complaint (R/383/03);

—	order the defendant to pay symbolic damages of one euro;

—	order the defendant to pay all the costs.

Pleas in law and main arguments

In support of his action the applicant claims that the new system of assessing officials is unlawful, for it provides for a limited number of merit points per division which forces the assessor to set off good assessments against less good. That entails discrimination between officials depending on the quota of points available in their division. The applicant also alleges a manifest error of assessment and claims that the development report he challenges amounts to psychological harassment of him.

30.4.2004

Official Journal of the European Union

C 106/83

Action brought on 15 March 2004 by S.I.M.SA srl and Others against Commission of the European Communities

(Case T-98/04)

(2004/C 106/162)

Language of the case: Italian

An action against Commission of the European Communities was brought before the Court of First Instance of the European Communities on 15 March 2004 by S.I.M.SA srl and Others, represented by Michele Arcangelo Calabrese, lawyer.

The applicants claim that the Court should:

—	Annul that part of the contested decision which by implication did not allow them to reformulate, in the first procedure organised on the basis of State aid scheme No N 715/99, the applications submitted in the penultimate procedure organised on the basis of the previous scheme;

—	Order the Commission to pay the costs.

Pleas in law and main arguments

In the present action, the annulment is sought of the decision dated 12 July 2000 by which the Commission authorised, without raising objections, State aid scheme No N 715/99, only as regards the part in which the applicants are, by implication, not allowed to reformulate the applications submitted in the third procedure organised under the previous scheme.

In support of their claims, the applicants make the following allegations:

—

infringement of essential procedural requirements, deriving, first, from the failure to open a formal inquiry procedure and, second, breach of the obligation to state the reasons on which measures are based, as laid down by Article 253 EC. Further breaches of essential procedural requirements are alleged to derive from infringements of Articles 9, 18 and 19 of Regulation (EC) No 659/99;

—

manifest error of assessment, in that the Commission concluded that the non-observance of the expiry date of the authorisation of the previous scheme (which, for the present purposes, should have been considered still to be in existence) had the effect of cancelling any rights to reformulate applications which had been legitimately acquired whilst it was in force.

—

breach of the principle of the protection of legitimate expectations and of legal certainty and certainty as regards legal situations, in so far as the Commission purported to reassess the compatibility with the Treaty of a scheme which had already been granted authorisation and because it contravened legal situations which were in the nature of real and genuine rights, regarding the creation of which the Commission had not raised any objection whatsoever.

Lastly, the applicants allege infringement of the principle of equal treatment and of their rights of defence.

30.4.2004

Official Journal of the European Union

C 106/83

Action brought on 11 March 2004 by Massimo Giannini against Commission of the European Communities

(Case T-100/04)

(2004/C 106/163)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 11 March 2004 by Massimo Giannini, residing in Brussels, represented by Georges Vandersanden and Laure Levi, lawyers.

The applicant claims that the Court should:

—	annul the decision of the selection board in Competition COM/A/9/01 not to include his name on the competition reserve list;

—

make an order awarding damages for the material damage suffered, assessed as the difference between the unemployment benefit received after the end of the contract as a temporary member of staff and the salary of an official in Grade A7, step 4 and, secondly, after the period of unemployment, assessed as the amount of the remuneration of an official in Grade 7, step 5;

—	make an order awarding damages for the non-material damage suffered, assessed at EUR 1;

—	order the defendant to pay the costs.

Pleas in law and main arguments

The subject matter of this application concerns the exclusion of the applicant's name from the reserve list resulting from Competition COM/A/9/01 with a view to constituting a reserve list for the recruitment of administrators (A7/A6) in the fields of economics and statistics.

In support of his claims, the applicant alleges, first, infringement of Articles 4, 27, 29, 30 and 31 of and Annex III to the Staff Regulations, disregard for the interests of the service, breach of the competition notice and of the duty to have regard for the welfare of officials and infringement of Article 1 of Decision 2002/621/EC of the Secretaries General of the Community Institutions inasmuch as two of the successful candidates whose names appear on the reserve list and who are officials are already in Grade A7/A6 and thus occupy posts as economists in that career bracket.

He further alleges:

—	breach of the principle of non-discrimination, in particular inasmuch as the selection board did not apply assessment criteria consistently, so that the applicant did not have the same conditions applied to him as were applied to the other candidates;

—	manifest error of assessment in the present case;

—	disregard for the principle of sound administration and infringement of Article 30 of the Staff Regulations and Article 3 of the Annex thereto, inasmuch as the board were not qualified to assess the tests objectively.

The applicant also alleges irregularity in the conduct of the procedure, misuse of powers and lack of powers and breach of the principle of non-retrospectivity.

30.4.2004

Official Journal of the European Union

C 106/84

Action brought on 8 March 2004 by David Cornwell against the Commission of the European Communities

(Case T-102/04)

(2004/C 106/165)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 8 March 2004 by David Cornwell, residing in Kraainem (Belgium), represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, avocats, with an address for service in Luxembourg.

The applicant claims that the Court should:

—	Annul the contested decision in so far as it revises and fixes his classification at Grade A4, step 4, on 1 August 2000 and at Grade A4, step 5, on 16 March 2003, and in so far as the financial effects of that decision are limited to the date of 5 October 1995;

—	Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments:

The applicant is challenging the decision of 14 April 2003 by the appointing authority revising and fixing his recruitment classification at Grade A5, step 3, on 1 May 1992, revising and fixing his subsequent classification at Grade A4, step 4, on 1 August 2000, and at Grade A4, step 5, on 16 March 2003, and limiting the financial effects thereof to 5 October 1995.

The pleas in law and arguments submitted are similar to those in Case T-402/03 Katalagarianakis v Commission (OJ 2004 C 35, p. 17).

30.4.2004

Official Journal of the European Union

C 106/85

Action brought on 15 March 2004 by Peter Ritzmann against Commission of the European Communities

(Case T-103/04)

(2004/C 106/166)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 15 March 2004 by Peter Ritzmann, residing in Trier (Germany), represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

—	annul the decision reducing the points awarded in respect of merit to the applicant for the assessment period 2001 – 2002;

—	order the defendant to pay the costs.

Pleas in law and main arguments

The applicant began his career at the Commission as a member of the temporary staff and was subsequently appointed as an official during the transitional assessment period 2001-2002.

According to the applicant, although he had been awarded a certain number of merit points by his assessor and counter-signing officer and the time he had served in the relevant grade had been taken into account with effect from the day on which he was engaged as a member of the temporary staff, the Commission decided to reduce his merit points substantially and to take account of his merits only in respect of his time served as an official.

In support of his action, the applicant alleges:

—	infringement of Articles 43 and 45 of the Staff Regulations and of the general rules implementing those articles;

—	breach of the principle of equal treatment and non-discrimination;

—	breach of the principle of proportionality.

30.4.2004

Official Journal of the European Union

C 106/85

Action brought on 16 March 2004 by Aluminium Silicon Mill Products GmbH against the Council of the European Union

(Case T-107/04)

(2004/C 106/168)

Language of the case: English

An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 16 March 2004 by Aluminium Silicon Mill Products, Zug, Switzerland, represented by Mr A. Willems and Mr L. Ruessmann, lawyers.

The applicant claims that the Court should:

—	Annul Council Regulation (EC) No. 2229/2003 to the extent it imposes duties on exports by SKU and ZAO Kremny

—	Order the Council the pay the costs

Pleas in law and main arguments:

The contested measure, Council Regulation (EC) No. 2229/2003 (1), imposed a definitive anti-dumping duty on imports of silicon originating in Russia and as part of that imposed a 22.7 % duty on silicon originating from two related Russian producers, SUAL- Kremny-Ural and ZAO Kremny. The applicant imports silicon metal from these two producers, for sale to customers located in the European Community, and on this basis requests the annulment of the contested measure.

In support of its application the applicant contends that the Council committed a manifest error of assessment and infringed Articles 1 paragraph 4 and article 6 paragraph 7 of Regulation 384/1996 (2), since the contested measure ignores the significance of the distinct product characteristics and distinct end uses of chemical and metallurgical silicon metals. The applicant further contends that the Council failed to state reasons in connection with the determination of the export price as well as the finding that between 1998 and 2000 the injury indicators developed positively. According to the applicant the latter finding also infringes Article 3.4 of the WTO Anti-Dumping Agreement and Article 3 paragraph 5 of Regulation 384/1996. The applicant also contends that the Council failed to state its reasons for concluding that a causal link between the allegedly dumped imports in question and the injury had been established, committed a manifest error of assessment in relation to this finding and infringed Article 3 paragraphs 2, 6 and 7 of Regulation 384/1996 and Articles 3.1 and 3.5 of the WTO Anti-Dumping Agreement. The applicant finally submits that the Council violated Article 3 paragraph 3 of Regulation 384/1996 in connexion with the use of underselling as the methodology for calculating injury elimination level, and failed to state adequate reasons for doing so.

(1) Official Journal L 339, 24/12/2003 P. 3 - 13.

(2) Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community, Official Journal L 056, 06/03/1996 P. 1 - 20.

30.4.2004

Official Journal of the European Union

C 106/86

Action brought on 12 March 2003 by Nikolaus Steininger against Commission of the European Communities

(Case T-108/04)

(2004/C 106/169)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 12 March 2003 by Nikolaus Steininger, residing in Brussels, represented by Nicolas Lhoëst, lawyer.

The applicant claims that the Court should:

—	annul the decision of the Commission of 8 May 2003 to reduce the applicant's merit points following his changes of status from member of the temporary staff falling within the research budget to that of an official falling within the operating budget;

—	in so far as necessary, annul the decision of the Commission of 24 November 2003 rejecting the applicant's complaint (R/401/03);

—	order the defendant to pay the costs.

Pleas in law and main arguments

The applicant joined the Commission as a member of the temporary staff. Upon success in an internal competition, the applicant was appointed probationary official.

According to the applicant, for the report on the development of career covering the period 1 July 2001 to 31 December 2002, the applicant's head of unit drew up a report awarding him several merit points. Subsequently, those merit points were reduced in proportion to the time served as an official, that is to say 2.5 months out of a total of 18 months, which is equivalent to an 86 % reduction.

In support of his application the applicant alleges:

—	the objection provided for in Article 4.4 of the general provisions implementing Article 43 of the Staff Regulations is not applicable;

—	the objection provided for in Article 4.4 of the general provisions implementing Article 43 of the Staff Regulations is not valid;

—	breach of the principle that legitimate expectations and of the principle of proportionality.

30.4.2004

Official Journal of the European Union

C 106/86

Action brought on 16 March 2004 by Paulo Sequeira Wandschneider against Commission of the European Communities

(Case T-110/04)

(2004/C 106/170)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 16 March 2004 by Paulo Sequeira Wandschneider, residing in Brussels, represented by Georges Vandersanden and Aurore Finchelstein, lawyers.

The applicant claims that the Court should:

—	annul the report on the development of career in respect of the reference period running from 1 July 2001 to 31 December 2002;

—	in so far as necessary, annul the decision rejecting the applicant's complaint of 11 July 2003;

—	order the defendant to pay damages and compensation for the material and non-material damage suffered by the applicant ex aequo et bono of up to EUR 2 500;

—	order the defendant to pay the costs.

Pleas in law and main arguments

The applicant in the present case is challenging the validity of his progress report (rapport d'évolution de carrière (REC)) in respect of the reference period running form 1 July 2001 to 31 December 2002.

In support of his claims, the applicant alleges:

—	infringement of Article 43 of the Staff Regulations, its general implementing provisions and the Guide to Assessment;

—	breach of the duty to provide reasons and the existence, in the present case, of a manifest error of assessment and misuse of powers;

—	failure to observe the duty to have regard for the welfare of officials and breach of the principle of sound administration;

—	breach of the rights of defence and failure to observe the time-limits laid down in the relevant provisions of the Staff Regulations.

30.4.2004

Official Journal of the European Union

C 106/87

Action brought on 15 March 2004 by OJSC Bratsk Aluminium Plant against the Council of the European Union

(Case T-111/04)

(2004/C 106/171)

Language of the case: English

An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 15 March 2004 by OJSC Bratsk Aluminium Plant, Bratsk, Russia, represented by Dr K. Adamantopoulos, lawyer and Mr J. Branton,Solicitor.

The applicant claims that the Court should:

—

Annul Council Regulation (EC) No. 2229/2003 of 22 December 2003 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of silicon originating in Russia, published on 24 December 2003 in the Official Journal of the European Union, OJ L 339, 24/12/2003, p. 3, insofar as it relates to the applicant

—	Order that all the costs occasioned by these proceedings be borne by the defendant.

Pleas in law and main arguments:

The contested measure, Council Regulation (EC) No. 2229/2003 (1), imposed a definitive anti-dumping duty on imports of silicon originating in Russia and as part of that imposed a 22.7 % duty on silicon originating in Russia. The applicant, a Russian company producing silicon, requests the annulment of this application.

In support of its application the applicant contends that the Council violated article 2 paragraphs 8 and 9 of Regulation 384/1996 (2), committed a manifest error of assessment and breached a fundamental procedural requirement by failing to accept that the applicant and its trader in the British Virgin Islands are related. The applicant further contends that it was denied its right to a fair hearing since the Council failed to conduct an additional verification visit in respect to that allegation. According to the applicant the Council also violated Article 18 paragraph 4 of regulation 384/1996 when it rejected evidence supplied by the applicant. The applicant also invokes a violation of article 20 paragraph 4 of Regulation 384/1996 consisting in the Council's failure to provide a proper statement of the essential facts and considerations on the basis of which it was proposed to impose definitive measures. The applicant finally submits that the contested regulation mistakenly considered the applicant's domestic sales as unprofitable and inflated the assessment of dumping, by rejecting the applicant's electricity costs and adjusting them upwards by reference to irrelevant factors. On this basis the applicant contends that the contested regulation violated Article 2 paragraphs 5 and 7 (b and c) of Regulation 384/1996, committed a manifest error of assessment and failed to state proper reasons.

(1) Official Journal L 339, 24/12/2003 P. 3-13.

(2) Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community, Official Journal L 056, 06/03/1996 P. 1-20.

30.4.2004

Official Journal of the European Union

C 106/88

Action brought on 19 March 2004 by Manuel Ruiz Sanz, Anna Maria Campogrande and Friedrich Mühlbauer against the Commission of the European Communities

(Case T-112/04)

(2004/C 106/172)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 19 March 2004 by Manuel Ruiz Sanz, residing in Tervuren (Belgium), Anna Maria Campogrande and Friedrich Mühlbauer, residing in Brussels, represented by Gilles Bounéou and Frédéric Frabetti, avocats, with an address for service in Luxembourg.

The applicants claim that the Court should:

—	annul the 2001-2002 reporting procedure in so far as the applicants are concerned;

—	in the alternative, annul the applicants' career development reports (REC/CDR) for the period from 1 July 2001 to 31 December 2002;

—	rule on costs, expenses and fees and order the Commission of the European Communities to pay same.

Pleas in law and main arguments:

The pleas in law submitted are identical to those in Case T-47/04 Alex Milbert and Others v Commission of the European Communities.

30.4.2004

Official Journal of the European Union

C 106/88

Action brought on 19 March 2004 by Yvonne Laroche against the Commission of the European Communities

(Case T-115/04)

(2004/C 106/173)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 19 March 2004 by Yvonne Laroche, residing in Brussels, represented by Gilles Bounéou and Frédéric Frabetti, avocats, with an address for service in Luxembourg.

The applicant claims that the Court should:

—	annul the decision of 11 June 2003 to close the applicant's career development report (CDR) for the period from 1 July 2001 to 31 December 2002;

—	rule on costs, expenses and fees and order the Commission of the European Communities to pay same.

Pleas in law and main arguments:

The applicant takes issue with the decision of the appointing authority definitively establishing her career development report for the period from 1 July 2001 to 31 December 2002.

According to the applicant, the contested decision was taken at a date on which she was on sick leave. She was apprised of that decision only after she had returned to work.

In support of her contentions, she pleads breach of Article 43 of the Staff Regulations and its general implementing provisions, and breach of the assessment guide for the 2001-2002 reporting period, in conjunction with infringement of the principles of sound administration, non-discrimination and prohibition of arbitrary procedure, and breach of the obligation to state reasons.

30.4.2004

Official Journal of the European Union

C 106/88

Action brought on 25 March 2004 by Francisco Rossi Ferreras against Commission of the European Communities

(Case T-119/04)

(2004/C 106/174)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 25 March 2004 by Francisco Rossi Ferreras, residing in Luxembourg, represented by Gilles Bounéou, and Frédéric Frabetti, lawyers.

The applicant claims that the Court should:

—	annul the applicant's staff report for the period running from 1 July 2001 to 31 December 2002;

—	order the defendant to pay the applicant EUR 30 000 by way of non-material damage;

—	order the defendant to pay all the costs.

Pleas in law and main arguments

The applicant, an official working for the defendant, is challenging his report in respect of the period 2001 to 2002.

He alleges infringement of Article 43 of the Staff Regulations, breach of the principles of sound administration, non-discrimination and of the principle prohibiting arbitrary decisions as well as breach of the duty to provide reasons. He further alleges manifest error of assessment of the defendant's reporting officers and claims to have been the victim of harassment by his line manager.

		ISSN 1725-2423
Official Journal of the European Union		C 106

English edition	Information and Notices	Volume 47 30 April 2004

	III Notices
2004/C 106/4	Last publication of the Court of Justice in the Official Journal of the European Union OJ C 94, 17.4.2004	91