title: Case C-117/03: Reference for a preliminary ruling by the Consiglio di Stato in sede giurisdizionale, Sezione Sesta by order of that Court of 17 December 2002 in the case of Società Italiana Dragaggi s.p.a. against Ministero delle Infrastrutture e dei Trasporti and Regione Autonoma del Friuli Venezia Giulia

text:
21.6.2003               EN                       Official Journal of the European Union                                         C 146/19
Appeal brought on 14 March 2003 by Augusto Fichtner,                           b)   even if it should be deemed that the appellant did,
a former official of the Commission of the European                                 however, fail to fulfil said obligation, such breach
Communities, against the judgment of 16 January 2003 of                             could not be held to have been committed ‘intention-
the Fourth Chamber of the Court of First Instance in Case                           ally or through negligence’;
           T-75/00 Augusto Fichtner v Commission
                                                                         2.    the principle of proportionality (by the administration)
                         (Case C-116/03 P)                                     by:
                                                                               a)   misuse of its powers: the Commission, by adopting
                          (2003/C 146/31)
                                                                                the contested decision, pursued an objective other
                                                                                that for which the relevant power had been con-
                                                                                ferred on it (safeguarding the internal rules of the
                                                                                civil service) and, in any event, in order to achieve
An appeal against the judgment of 16 January 2003 of the                            purposes other than those declared;
Fourth Chamber of the Court of First Instance in Case T-75/
00 Augusto Fichtner v Commission was brought before the
                                                                               b)   manifest error of assessment of the facts: the Com-
Court of Justice of the European Communities on 14 March                            mission failed to take into account:
2003 by Augusto Fichtner, represented by Michele Tamburini
and Franco Colussi, lawyers.
                                                                                1.    the good faith of the appellant;
The appellant claims that the Court should:
                                                                                2.    that he could not have been refused the per-
                                                                                mission in question since the outside activity
—     set aside the contested judgment;                                                   did not impair the official’s independence nor
                                                                                was detrimental to the work of the Communi-
—     uphold the claims submitted at first instance and, accord-                          ties.
      ingly;
      —     annul the contested decision of the appointing
            authority of 30 September 1999, which is at issue;
      —     order the Commission to pay him the outstanding
            remuneration and allowances as revalued and with
            interest to run from the date on which the decision
            took effect until actual payment is made;
                                                                         Reference for a preliminary ruling by the Consiglio di
                                                                         Stato in sede giurisdizionale, Sezione Sesta by order of
      —     order the Commission to make good the material
                                                                         that Court of 17 December 2002 in the case of Società
            and non-material damage suffered by the appellant,
                                                                         Italiana Dragaggi s.p.a. against Ministero delle Infrastruttu-
            such compensation being assessed at EUR 50 000 or
                                                                         re e dei Trasporti and Regione Autonoma del Friuli
            any other amount which the Court might deem
                                                                                Venezia Giulia
            appropriate and equitable or as may be subsequently
            decided;
                                                                                (Case C-117/03)
—     order the Commission to pay the costs.
                                                                                (2003/C 146/32)
Pleas in law and main arguments
The judgment of the Court of First Instance is contrary to
Community law, in particular to:                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the Consiglio di Stato in
                                                                         sede giurisdizionale, Sezione Sesta (Judicial Committee of the
1.    Article 86(1) of the Staff Regulations, inasmuch as:
                                                                         Council of State, Sixth Chamber) of 17 December 2002,
                                                                         received at the Court Registry on 18 March 2003, for a
      a)    the appellant did not fail to fulfil his obligations         preliminary ruling in the case of Società Italiana Dragaggi s.p.a.
            under the third paragraph of Article 12 of the Staff         against Ministero delle Infrastrutture e dei Trasporti and
            Regulations, having proved that he did request               Regione Autonoma del Friuli Venezia Giulia on the following
            permission to pursue an outside activity;                    question:
 ---pagebreak--- C 146/20               EN                         Official Journal of the European Union                                          21.6.2003
Is Article 4(5) of Directive No 92/43 ( 1) of 21 May 1992 to be                 b)    If the answer to question 1(a) is affirmative: must
interpreted as meaning that the measures under Article 6 and,                         Article 22 of Directive 92/46/EEC be interpreted as
in particular, under Article 6(3) of that directive are mandatory                     meaning that in the case of imports from non-
for the Member States only after final approval at Community                          Member States that directive is applicable only to
level of the list of sites under Article 21 or, alternatively, in                     the milk constituent of a product and thus not to
addition to determination of the ordinary commencement date                           the product of which it is a constituent?
of conservation measures, must a distinction be drawn between
declaratory listing and determinative listing (including in the           2.    a)    Does the concept of ’milk-based products’ in
first category the listing of priority sites) with the result that,                   Article 2(4) of Directive 92/46/EEC concern only
in order to ensure the effectiveness of the directive, where a                        finished products or also semifinished products
Member State identifies a site of Community importance                                which must undergo further processing before they
sustaining priority natural habitat types or species, there must                      can be offered for sale to the consumer?
be considered to be an obligation to carry out an assessment
of plans and projects with a significant effect on the site even
before the Commission draws up the draft list of sites or                       b)    In the event that Article 2(4) of Directive 92/46/EEC
adopts the final version of that list pursuant to Article 21 of                       also refers to semifinished products, according to
the directive and, in fact, with effect from the drawing up of                        which criteria must it be determined whether milk
the national list?                                                                    or a milk product forms an essential part of a
                                                                                product, either in terms of quantity or for charac-
                                                                                terization of those products, as referred to in
                                                                                Article 2(4) of Directive 92/46/EEC?
( 1) OJ L 206 of 22.7.1992, p. 7.
                                                                          (1 ) OJ L 268 [1992], p. 1.
Reference for a preliminary ruling by the College van
Beroep voor het bedrijfsleven by judgment of that Court                   Action brought on 20 March 2003 by the Commission of
of 11 March 2003 in the case of (1) Artrada (Freezone)                    the European Communities against the Federal Republic
NV, (2) Videmecum BV and (3) Jac. Meisner Internationaal                                              of Germany
Expeditiebedrijf BV against Rijksdienst voor de Keuring
                        van Vee en Vlees
                                                                                (Case C-126/03)
                         (Case C-124/03)                                                            (2003/C 146/34)
                         (2003/C 146/33)
                                                                          An action against the Federal Republic of Germany was
                                                                          brought before the Court of Justice of the European Communi-
                                                                          ties on 20 March 2003 by the Commission of the European
Reference has been made to the Court of Justice of the                    Communities, represented by Klaus Wiedner, of the Com-
European Communities by judgment of the College van Beroep                mission’s Legal Service, acting as Agent, with an address for
voor het bedrijfsleven (Administrative Court for Trade and                service in Luxembourg.
Industry) of 11 March 2003, received at the Court Registry on
20 March 2003, for a preliminary ruling in the case of
(1) Artrada (Freezone) NV, (2) Videmecum BV and (3) Jac.                  The Commission claims that the Court should:
Meisner Internationaal Expeditiebedrijf BV against Rijksdienst
voor de Keuring van Vee en Vlees (Netherlands Livestock and               —     Declare that, by reason of the fact that the contract for
Meat Inspectorate) on the following questions:                                  waste transport concluded by the City of Munich was
                                                                                awarded without compliance with the notification
1.    a)    Must the term ‘milk for the manufacture of milk-                    requirements laid down in Article 8, in conjunction with
            based products’ in Article 2(2) of Directive 92/46/                 Articles 15(2) and 16(1), of Directive 92/50 (1), the
            EEC ( 1) be interpreted as meaning that it (also)                   Federal Republic of Germany has failed to fulfil its
            includes milk constituents of a product which also                  obligations under that directive; and
            contains other non-milk constituents and where the
            milk constituent cannot be separated from the non-            —     Order the Federal Republic of Germany to pay the costs
            milk constituents?                                                  of the proceedings.


title: Joined Cases C-261/08 and C-348/08: Judgment of the Court (Third Chamber) of 22 October 2009 (references for preliminary rulings from the Tribunal Superior de Justicia de Murcia (Spain)) — María Julia Zurita García (C-261/08), Aurelio Choque Cabrera (C-348/08) v Delegación del Gobierno en Murcia (Visas, asylum and immigration — Measures concerning the crossing of external borders — Article 62(1) and (2)(a) EC — Convention implementing the Schengen Agreement — Articles 6b and 23 — Regulation (EC) No 562/2006 — Articles 5, 11 and 13 — Presumption concerning the duration of the stay — Unlawful presence of third-country nationals in the territory of a Member State — National legislation allowing for either a fine or expulsion, depending on the circumstances)

text:
               5.12.2009

               EN

               Official Journal of the European Union

               C 297/12

         Judgment of the Court (Third Chamber) of 22 October 2009 (references for preliminary rulings from the Tribunal Superior de Justicia de Murcia (Spain)) — María Julia Zurita García (C-261/08), Aurelio Choque Cabrera (C-348/08) v Delegación del Gobierno en Murcia
   (Joined Cases C-261/08 and C-348/08) (1)

   (Visas, asylum and immigration - Measures concerning the crossing of external borders - Article 62(1) and (2)(a) EC - Convention implementing the Schengen Agreement - Articles 6b and 23 - Regulation (EC) No 562/2006 - Articles 5, 11 and 13 - Presumption concerning the duration of the stay - Unlawful presence of third-country nationals in the territory of a Member State - National legislation allowing for either a fine or expulsion, depending on the circumstances)
   2009/C 297/11
   Language of the cases: Spanish

      Referring court

   Tribunal Superior de Justicia de Murcia

      Parties to the main proceedings

      Appellants: María Julia Zurita García (C-261/08), Aurelio Choque Cabrera (C-348/08)

      Respondent: Delegación del Gobierno en Murcia

      Re:

   Reference for a preliminary ruling — Tribunal Superior de Justicia de Murcia — Interpretation of Article 62(1) and (2)(a) EC and Articles 5, 11 and 13 of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105, p. 1) — National rules allowing the penalty of expulsion to be replaced by the payment of a fine

      Operative part of the judgment

   Articles 6b and 23 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed at Schengen on 19 June 1990, as amended by Council Regulation (EC) No 2133/2004 of 13 December 2004 on the requirement for the competent authorities of the Member States to stamp systematically the travel documents of third-country nationals when they cross the external borders of the Member States and amending the provisions of the Convention implementing the Schengen agreement and the common manual to this end, and Article 11 of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), must be interpreted as meaning that, where a third-country national is unlawfully present on the territory of a Member State because he or she does not fulfil, or no longer fulfils, the conditions of duration of stay applicable there, that Member State is not obliged to adopt a decision to expel that person.

      (1)  OJ C 209, 15.8.2008.

      OJ C 260, 11.10.2008.


title: Case T-158/10: Action brought on 9 April 2010 — Dow Chemical v Council

text:
               19.6.2010

               EN

               Official Journal of the European Union

               C 161/44

      Action brought on 9 April 2010 — Dow Chemical v Council
      (Case T-158/10)
      (2010/C 161/70)
      Language of the case: English

         Parties

         Applicant: The Dow Chemical Company (represented by: J.-F. Bellis, R. Luff and V. Hahn, lawyers)

         Defendant: Council of the European Union

         Form of order sought

                  —

                  annul Council Implementing Regulation (EU) No 54/2010 (1) insofar as it concerns the applicant,

                  —

                  order the Council to bear the costs.

         Pleas in law and main arguments

      In support of its application, the applicant puts forward a single plea in law by which it claims that the contested regulation violates Article 11(2) of the basic regulation (2), on the following grounds:

                  —

                  the determination that dumping of ethanolamines from the US will continue is erroneously based on a finding of dumping during the review investigation period in relation to exporting producers representing only a very minor proportion of imports from the US; the institutions ignored the fact that the producer who accounted for the overwhelming majority of imports from the US was found not to have engaged in dumping and that, as a result, imports of ethanolamines from the US taken globally were not dumped;

                  —

                  the determination that the alleged dumping of ethanolamines from the US increased after review investigation period is based on an arbitrary selection of price quotes which do not reflect the trend of prices after the review investigation period;

                  —

                  the determination that spare capacity in the US will lead to an increase in exports of ethanolamines to the EU is based on a manifest error since there was no unused capacity in the US;

                  —

                  the determination that the anti-dumping measures on ethanolamines from the US imposed by China since 2004 will induce the US ethanolamines exporters to sell increased quantities to the EU is contradicted by the development of trade flows since 2005;

                  —

                  the determination that the possible development of demand in the US and other markets will lead US producers to shift exports to the EU is purely speculative;

                  —

                  the determination that very weak prices and capacity expansions for monoethylene glycol — which, like ethanolamines, is a downstream product of ethylene oxide — would provide an incentive for producers to shift from monoethylene glycol to ethanolamines production is inconsistent with the facts on record and is vitiated by an error of assessment;

                  —

                  the defendant develops a contradictory reasoning as regards the relationship between US and EU prices since they seem to argue at the same time that higher EU prices provide an incentive for US exporters to shift their sales to the EU and that lower prices in the EU force US producers to sell at dumped prices in the EU.

         (1)  Council Implementing Regulation (EU) No 54/2010 of 19 January 2010 imposing a definitive anti-dumping duty on imports of ethanolamines originating in the United States of America, OJ 2010 L 17, p. 1

         (2)  Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1)


title: Order of the Court of First Instance of 25 November 2003 in Case T-85/01: IAMA Consulting S.r.l. v Commission of the European Communities (Esprit Programme — Actions in the field of research and technological development — Community financing — Eligible expenditure — Arbitration clause — Action for annulment — Admissibility — Counterclaim — Jurisdiction of the Court of First Instance)

text:
3.4.2004               EN                          Official Journal of the European Union                                            C 85/25
1.    Dismisses the application;                                                 ORDER OF THE COURT OF FIRST INSTANCE
2.    Orders the parties to bear their own costs.
                                                                                of 25 November 2003
(1) OJ C 131 of 1.6.2002.
                                                                           in Case T-85/01: IAMA Consulting S.r.l. v Commission of
                                                                                the European Communities (1)
                                                                           (Esprit Programme — Actions in the field of research
                                                                           and technological development — Community financing —
                                                                           Eligible expenditure — Arbitration clause — Action for
                                                                           annulment — Admissibility — Counterclaim — Jurisdiction
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                                 of the Court of First Instance)
                       of 20 January 2004
                                                                                (2004/C 85/49)
in Case T-195/02: Anselmo Briganti v Commission of the
                  European Communities (1)
                                                                                (Language of the case: Italian)
(Officials — Open competition — Action for annulment —
Pre-selection procedure — Conduct of the tests — Retro-
active annulment of certain multiple-choice questions —
Principle of equal treatment — Principle of legitimate
                            expectations)                                  In Case T-85/01: IAMA Consulting S.r.l., established in Milan,
                                                                           represented by V. Salvatore, lawyer, against Commission of
                                                                           the European Communities (Agents: E. de March and A. Dal
                           (2004/C 85/48)                                  Ferro) – application for annulment of the provisions adopted
                                                                           by the Commission on 12 and 21 February 2001 relating to
                                                                           expenditure eligible for Community financing in connection
                   (Language of the case: Italian)                         with the REGIS 22337 and REFIAG 23200 Projects, carried
                                                                           out under the European programme for research and develop-
                                                                           ment in information technologies (Esprit) — the Court of First
                                                                           Instance, composed, at the time of its deliberation, of V. Tiili,
                                                                           President, and P. Mengozzi, M. Vilaras, J. Pirrung and
In Case T-195/02: Anselmo Briganti, residing in Tarente (Italy),           A. W. H. Meij, Judges; H. Jung, Registrar, made an order on
represented by G. Sciusco, lawyer, with an address for service             25 November 2003, the operative part of which is as follows:
in Luxembourg, against Commission of the European Com-
munities (Agents: J. Currall and A. Dal Ferro) — application,
principally, for annulment of the decision of the selection
board in open competition Commission of the European                       (1) The forms of order sought as a main claim and in the alternative
Communities/A/11/01 not to admit the applicant to the tests                     by the applicant are dismissed as inadmissible.
subsequent to the pre-selection tests, the Court of First
Instance, composed of J. D. Cooke, Single Judge; H. Jung,
Registrar, gave a judgment on 20 January 2004, in which it:                (2) The counterclaim by the Commission is referred back to the
                                                                                Court.
1.    Dismisses the action;
                                                                           (3) The applicant is ordered to pay the costs.
2.    Orders the parties to bear their own costs.
                                                                           (1) OJ C 186, 30.6.2001.
(1) OJ C 191 of 10.8.2002.


title: Judgment of the Court (Sixth Chamber) 2 July 2002 in Case C-499/99: Commission of the European Communities v Kingdom of Spain (Failure by a Member State to fulfil its obligations — State aid — Aid granted to companies in the Magefesa group — Commission Decisions 91/1/EEC and 1999/509/EC — Non-performance)

text:
C 233/4                 EN                       Official Journal of the European Communities                                          28.9.2002
                 JUDGMENT OF THE COURT                                            incompatible with the common market and with Commission
                                                                                Decision 1999/509/EC of 14 October 1998 concerning aid
                                                                                granted by Spain to companies in the Magefesa group and their
                          (Sixth Chamber)                                         successors, in so far as it declared the aid granted to Gursa,
                                                                                Migsa and Cunosa illegal and incompatible with the common
                                                                                market, and second, by failing to inform the Commission,
                             2 July 2002                                          within the prescribed period, of measures taken to implement
                                                                                Decision 1999/509 in so far as it declared aid granted to
                                                                                Indosa illegal and incompatible with the common market, the
                                                                                Kingdom of Spain has failed to fulfil its obligations under the
in Case C-499/99: Commission of the European Communi-
                   ties v Kingdom of Spain ( 1)                                   fourth paragraph of Article 249 EC and Articles 2 and 3 of
                                                                                those decisions;
(Failure by a Member State to fulfil its obligations — State                2.    For the rest, dismisses the Commission’s action;
aid — Aid granted to companies in the Magefesa group —
Commission Decisions 91/1/EEC and 1999/509/EC — Non-                        3.    Orders the Kingdom of Spain to pay the costs.
                            performance)
                                                                            (1 ) OJ C 79 of 18.3.2000.
                          (2002/C 233/05)
                   (Language of the case: Spanish)
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)
                                                                                JUDGMENT OF THE COURT
                                                                                25 July 2002
In Case C-499/99, Commission of the European Communities
(Agents: G. Rozet and R. Vidal) v Kingdom of Spain (Agent:
R. Silva de Lapuerta): Application for a declaration that, by               in Case C-50/00 P: Unión de Pequeños Agricultores v
failing to adopt, within the prescribed period, the measures                               Council of the European Union ( 1)
necessary to comply with Commission Decision 91/1/EEC of
20 December 1989 concerning aids in Spain which the central
and several autonomous governments granted to Magefesa,                     (Appeal — Regulation (EC) No 1638/98 — Common
producer of domestic articles of stainless steel and small                  organisation of the market in oils and fats — Action for
electric appliances (OJ 1991 L 5, p. 18) and Commission                     annulment — Person individually concerned — Effective
Decision 1999/509/EC of 14 October 1998 concerning aid                                     judicial protection — Admissibility)
granted by Spain to companies in the Magefesa group and
their successors (OJ 1999 L 198, p. 15), declaring that certain
aid to companies in the Magefesa group was granted unlawfully                                          (2002/C 233/06)
and is incompatible with the common market, the Kingdom
of Spain has failed to fulfil its obligations under the fourth
                                                                                (Language of the case: Spanish)
paragraph of Article 249 EC and Articles 2 and 3 of those
decisions, the Court (Sixth Chamber), composed of: F. Macken,
President of the Chamber, J.-P. Puissochet (Rapporteur),                    (Provisional translation; the definitive translation will be published
R. Schintgen, V. Skouris and J.N. Cunha Rodrigues, Judges;                                      in the European Court Reports)
J. Mischo, Advocate General; R. Grass, Registrar, has given a
judgment on 2 July 2002, in which it:
1.    Declares that, first, by failing to adopt, within the prescribed      In Case C-50/00 P, Unión de Pequeños Agricultores (Agents:
      period, the necessary measures to comply with Commission              J. Ledesma Bartret and J. Jiménez Laiglesia y de Oñate): Appeal
      Decision 91/1/EEC of 20 December 1989 concerning aids in              against the order of the Court of First Instance of the European
      Spain which the central and several autonomous governments            Communities (Third Chamber) of 23 November 1999 in Case
      granted to Magefesa, producer of domestic articles of stainless       T-173/98 Unión de Pequeños Agricultores v Council [1999]
      steel and small electric appliances, in so far as it declared the     ECR II-3357, seeking to have that order set aside, the other
      aid granted to Industrias Domésticas SA (Indosa), Manufactu-          parties to the proceedings being: Council of the European
      ras Gur SA (Gursa), Manufacturas Inoxidables Gibraltar SA             Union (Agent: I. Díez Parra), supported by Commission of the
      (Migsa) and Cuberta del Norte SA (Cunosa) illegal and                 European Communities (Agents: J. Guerra Fernández and


               16.4.2005

               EN

               Official Journal of the European Union

               C 93/23

         Removal from the register of Case C-272/02 (1)

   (2005/C 93/44)

      (Language of the case: English)

   By order of 2 December 2004, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-272/02: Commission of the European Communities v Council of the European Union.

      (1)  OJ C 219 of 14.09.2002.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 1 October 1998 in Case C-285/96: Commission of the European Communities v. Italian Republic (Failure by a Member State to fulfil its obligations - Non-transposition of Directive 76/464/EEC - Judgment by default)

text:
7.11.98               EN                  Official Journal of the European Communities                                      C 340/7
27 March 1996 on emergency measures to protect against               3. Consideration of question 4 has not disclosed any
bovine spongiform encephalopathy (OJ L 78 of 28.3.1996,                   factor of such a kind as to affect the validity of
p. 47) and of Commission Regulation (EC) No 773/96 of                     Decison 96/239/EC.
26 April 1996 laying down special measures derogating
from Regulations (EEC) No 3665/87, (EEC) No 3719/88
and (EEC) No 1964/82 in the beef and veal sector (OJ                      Commission Regulation (EC) No 773/96 of 26 April
L 104 of 27.4.1996, p. 19) Ð the Court (First Chamber),                   1996 laying down special measures derogating from
composed of: M. Wathelet, President of Chamber, P. Jann                   Regulations (EEC) No 3665/87, (EEC) No 3719/88
and L. Sevón (Rapporteur), Judges; N. Fennelly, Advocate                  and (EEC) No 1964/82 in the beef and veal sector is
General; L. Hewlett, Administrator, for the Registrar, has                not rendered invalid by the fact that it prohibits
given a judgment on 29 September 1998, in which it has                    exporters, in the circumstances described in the answer
ruled:                                                                    to the second question, from retaining all or part of
                                                                          any export refunds paid in advance.
1. Articles 23 and 33 of Commission Regulation (EEC)                 (1) OJ C 295 of 27.9.1997.
    No 3665/87 of 27 November 1987 laying down
    common detailed rules for the application of the
    system of export refunds on agricultural products, in
    the version thereof resulting from Commission
    Regulation (EEC) No 1615/90, must be interpreted as
    meaning that where, as a result of, in particular, force
    majeure, goods do not reach their country of                                    JUDGMENT OF THE COURT
    destination but are repatriated to the Member State of                                  (Sixth Chamber)
    export, the exporter is obliged to repay any export
    refunds paid in advance.                                                               of 1 October 1998
                                                                     in    Case   C-285/96: Commission of the             European
2. Regulation (EEC) No 3665/87 does not contravene                                Communities v. Italian Republic (1)
    the general principles of Community law, in particular           (Failure by a Member State to fulfil its obligations Ð
    the principles of force majeure, the protection of               Non-transposition of Directive 76/464/EEC Ð Judgment
    legitimate expectations, proportionality or equity, by                                      by default)
    prohibiting exporters of beef from the United
    Kingdom from retaining all or part of any export                                          (98/C 340/12)
    refunds paid in advance in circumstances where:
                                                                                (Language of the case: Italian)
    a) exports of beef from the United Kingdom to third
        countries have been prohibited by Commission
        Decision 96/239/EC of 27 March 1996 on                         (Provisional translation; the definitive translation will be
        emergency measures to protect against bovine                           published in the European Court Reports)
        spongiform encephalopathy;
                                                                     In Case C-285/96: Commission of the European
    b) bans on the importation of beef from the United               Communities (Agents: Götz zur Hausen and Paolo
        Kingdom have also been imposed by a number of                Stancanelli) v. Italian Republic Ð application for a
        third countries;                                             declaration that, by failing to adopt pollution reduction
                                                                     programmes with quality objectives for 99 dangerous
    c) exporters of beef were in the process of carrying             substances set out in List I of the Annex, alternatively by
        goods to third countries on the date on which                failing to communicate to the Commission summaries of
        Decision 96/239/EC was adopted;                              those programmes and the results of their implementation,
                                                                     contrary to Article 7 of Council Directive 76/464/EEC of
                                                                     4 May 1976 on pollution caused by certain dangerous
    d) those exporters were forced to repatriate the beef            substances discharged into the aquatic environment of the
        to the United Kingdom;                                       Community (OJ L 129 of 18.5.1976, p. 23), and by
                                                                     failing to provide the relevant information requested in
    e) the exporters had received, in accordance with                breach of Article 5 of the EC Treaty, the Italian Republic
        Council Regulation (EEC) No 565/80 of 4 March                has failed to fulfil its obligations under the EC Treaty Ð
        1980 on the advance payment of export refunds in             the Court (Sixth Chamber), composed of: H. Ragnemalm,
        respect of agricultural products and Commission              President of the Chamber, R. Schintgen, G. F. Mancini,
        Regulation (EEC) No 3665/87, advance payments                P. J. G. Kapteyn and G. Hirsch (Rapporteur), Judges; J.
        of export refunds in respect of the export                   Mischo, Advocate General; R. Grass, Registrar, has given
        transactions at issue; and                                   a judgment on 1 October 1998, in which it:
    f) the exporters suffered loss as a result of their              1. declares that, by failing to adopt pollution reduction
        inability to sell their beef on the export markets in             programmes with quality objectives for 99 dangerous
        question.                                                         substances set out in List I of the Annex to Council
 ---pagebreak--- C 340/8               EN                 Official Journal of the European Communities                                     7.11.98
    Directive 76/464/EEC of 4 May 1976 on pollution                     merely clarified how product in Regulation (EEC)
    caused by certain dangerous substances discharged                   No 1768/92 was to be understood ab initio?
    into the aquatic environment of the Community, the
    Italian Republic has failed to fulfil its obligations           3. If the answer to Question 2 is that Regulation (EC)
    under that Directive;                                               No 1610/96 amended Regulation (EEC) No 1768/92:
2. declares that, by failing to provide the Commission                  When determining whether the conditions for granting
    with the information requested by it on the level of                a protection certificate under Article 19 of Regulation
    water pollution in Italy in order to enable it to                   (EEC) No 1768/92 are satisfied, is the relevant date
    establish the extent of the obligations flowing from                that on which the application for the protection
    Article 7 of Directive 76/464/EEC, the Italian                      certificate was made or that on which the national
    Republic has failed to fulfil its obligations under                 authority (here, the Austrian Patent Office) issued its
    Article 5 of the EC Treaty;                                         decision?
                                                                    4. If the term product in Article 19 of Regulation (EEC)
3. orders the Italian Republic to pay the costs.                        No 1768/92 is to be given a broad construction,
                                                                        whether ab initio or only since Regulation (EC)
(1) OJ C 294 of 5.10.1996.                                              No 1610/96, but the relevant legal position is that
                                                                        prevailing at the time of the decision on the
                                                                        application for the protection certificate:
                                                                        Does a breach of Article 19 of Regulation (EEC)
                                                                        No 1768/92 constitute a ground for invalidity that is
                                                                        not set out in Article 15 of that Regulation, or is the
Reference for a preliminary ruling by the Oberster                      protection certificate otherwise ineffective?
Gerichtshof by Decision of 12 August 1998 in the case of
The Wellcome Foundation Ltd v. Nycomed Austria GmbH                 (1) OJ L 182 of 2.7.1992, p. 1.
                       (Case C-330/98)                              (2) OJ L 198 of 8.8.1996, p. 30.
                        (98/C 340/13)
Reference has been made to the Court of Justice of the
European Communities by Decision of 12 August 1998
                                                                    Reference for a preliminary ruling by the Tribunale
from the Oberster Gerichtshof (Austrian Supreme Court),
                                                                    Amministrativo Regionale per la Lombardia, by order of
which was received at the Court Registry on 7 September
                                                                    that court of 28 January 1998, in the case of Agenzia R di
1998, for a preliminary ruling in the case of The
                                                                    Recapito Srl v. Poste Italiane Ente Pubblico Economico
Wellcome Foundation Ltd v. Nycomed Austria GmbH on
                                                                                and Rinaldi Agenzia di Recapito Srl
the following questions:
                                                                                (Case C-336/98)
1   Is the term product, as used in Ð inter alia Ð                                          (98/C 340/14)
    Article 19 of Council Regulation (EEC) No 1768/92
    of 18 June 1992 concerning the creation of a                    Reference has been made to the Court of Justice of the
    supplementary protection certificate for medicinal              European Communities by an order of the Tribunale
    products (1), to be construed in that article as covering       Amministrativo Regionale per la Lombardia (Lombardy
    only an active ingredient or substance in a specific            Regional Administrative Court) of 28 January 1998,
    chemical compound or Ð in so far as the                         which was received at the Court Registry on 14 September
    pharmacological characteristics are equivalent Ð also           1998, for a preliminary ruling in the case of Agenzia R di
    its derivatives (such as salts)?                                Recapito Srl v. Poste Italiane Ente Pubblico Economico
                                                                    and Rinaldi Agenzia di Recapito Srl, on the following
                                                                    questions:
2. if the answer to Question 1 is that the term product is
    to be broadly construed:
                                                                    1. Whether or not the reservation to the State of the
                                                                        express postal service, by virtue of Presidential Decree
    If such a construction of the term product as used in               No 156/76 (and the consequent restrictive power
    Article 19 of Council Regulation (EEC) No 1768/92                   under public law to grant concessions to third parties
    derives only from the recitals in the preamble to                   for the running of those services) conflicts with
    Regulation (EC) No 1610/96 of the European                          Articles 86 and 90 of the Treaty as regards the services
    Parliament and of the Council of 23 July 1996                       which are regarded as supplementary to the exclusive
    concerning the creation of a supplementary protection               right of the State to collect, carry and deliver mail and
    certificate for plant protection products (2), which may,           which in any event can be dissociated from that right
    mutatis mutandis, be used also for the purpose of                   on the basis of calculation of the added value arising
    construing Regulation (EEC) No 1768/92, was                         from the extra price which the customer is prepared to
    Regulation (EEC) No 1768/92 amended by Regulation                   pay, without, however, there being any impact on
    (EC) No 1610/96, or has Regulation (EC) No 1610/96                  price limits in the reserved sector?


title: Case T-479/08: Action brought on 10 November 2008 — adidas v OHIM — Patrick Holding (Representation of a shoe with two stripes)

text:
               10.1.2009

               EN

               Official Journal of the European Union

               C 6/39

         Action brought on 10 November 2008 — adidas v OHIM — Patrick Holding (Representation of a shoe with two stripes)
   (Case T-479/08)
   (2009/C 6/78)
   Language in which the application was lodged: English
   Parties

      Applicant: adidas AG (Herzogenaurach, Germany) (represented by: V. von Bomhard, A. Renck lawyers and I. Fowler, Solicitor)

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

      Other party to the proceedings before the Board of Appeal: Patrick Holding ApS (Fredensborg, Denmark)
   Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 27 August 2008 in case R 849/2007-2; and

               —

               Order the defendant to bear the costs, or, in the event that the other party to the proceedings before the Board of Appeal intervenes on the side of the defendant, order both parties to bear jointly the costs.

         Pleas in law and main arguments

      Applicant for the Community trade mark: The other party to the proceedings before the Board of Appeal

      Community trade mark concerned: The figurative mark representing a shoe with two stripes, for goods in classes 18, 25 and 28.

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

      Mark or sign cited: German trade mark registration No 39 950 559 of the figurative mark representing a shoe with three stripes for goods in class 25; German trade mark registration No 944 623 of the figurative mark representing a shoe with three stripes for goods in class 25; German trade mark registration No 944 624 of the figurative mark representing a shoe with three stripes for goods in class 25; German trade mark registration No 897 134 of the figurative mark representing a shoe with three stripes for goods in class 25; German designation of the international trade mark registration No 391 692 of the figurative mark representing a shoe with three stripes for goods in class 25; German designation of the international trade mark registration No 414 034 of the figurative mark representing three stripes for goods in class 25; German designation of the international trade mark registration No 414 035 of the figurative mark representing three stripes for goods in class 25; German designation of the international trade mark registration No 414 036 of the figurative mark representing three stripes for goods in class 25; German designation of the international trade mark registration No 414 037 of the figurative mark representing three stripes for goods in class 25.

      Decision of the Opposition Division: Upheld the opposition and rejected the Community trade mark concerned in its entirety

      Decision of the Board of Appeal: Annulled the decision of the Opposition Division

      Pleas in law: Infringement of Rules 16(3), 17(2) and 20(2) of Commission Regulation No 2868/95 (1), thereby also infringing Article 8(1)(b) of Council Regulation 40/94, as the Board of Appeal erred in its finding that the applicant did not fulfil the translation requirement and thereby did not properly substantiate the validity, existence and scope of the earlier trade marks invoked, in particular of German trade mark registration No 39 950 559.

      (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).


title: Case C-242/07 P: Order of the Court of 8 November 2007 — Kingdom of Belgium v Commission of the European Communities (Appeals — Time for appealing — Article 43(6) of the Rules of Procedure of the Court of First Instance — Original of the application lodged out of time — Inadmissibility — Concept of excusable error — Concept of unforeseeable circumstances )

text:
               26.1.2008

               EN

               Official Journal of the European Union

               C 22/19

         Order of the Court of 8 November 2007 — Kingdom of Belgium v Commission of the European Communities
   (Case C-242/07 P) (1)

   (Appeals - Time for appealing - Article 43(6) of the Rules of Procedure of the Court of First Instance - Original of the application lodged out of time - Inadmissibility - Concept of ‘excusable error’ - Concept of ‘unforeseeable circumstances’)
   (2008/C 22/36)
   Language of the case: French
   Parties

      Applicant: Kingdom of Belgium (represented by: L. Van den Broeck, Agent, J.-P. Buyle and C. Steyaert, avocats)

      Other party to the proceedings: Commission of the European Communities (represented by: L. Flynn and A. Steiblytė, Agents)
   Re:
   Appeal brought against the order of the Court of First Instance (Fourth Chamber) of 15 March 2007 in Case T-5/07 Belgium v Commission, by which the Court of First Instance dismissed as inadmissible, because it was brought out of time, the appellant's action for annulment of the Commission's decision of 18 October 2006 refusing to reimburse it for a principal sum and interest paid by it in respect of debts to the European Social Fund — Time-limits for commencing proceedings and time-limits for lodging an original when a copy has earlier been sent by fax — Concepts of unforeseeable circumstances and excusable error
   Operative part of the order
   The Court orders:

               1.

               The appeal is dismissed.

               2.

               The Kingdom of Belgium is ordered to pay the costs.

      (1)  OJ C 170, 21.7.2007.


title: Case T-546/08: Action brought on 2 December 2008 — Villa Almè v OHIM — Bodegas Marqués de Murrieta (i GAI)

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/59

         Action brought on 2 December 2008 — Villa Almè v OHIM — Bodegas Marqués de Murrieta (i GAI)
   (Case T-546/08)
   (2009/C 44/101)
   Language in which the application was lodged: Italian
   Parties

      Applicant: Villa Almè Azienda vitivinicola di Vizzotto Giuseppe (Mansuè, Italy) (represented by: G. Massa, lawyer, P. Massa, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Bodegas Marqués de Murrieta, SA (Logroño, Spain)
   Form of order sought

               —

               Annul the Decision of 24/09/08 of the First Board of Appeal (R 1695/2007-1) and order OHIM to pay the costs.

         Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant.

      Community trade mark concerned: Figurative mark ‘i GAY’ (registration application No 4.458.295) for goods in Class 33 (wines).

      Proprietor of the mark or sign cited in the opposition proceedings: Bodegas Marqués de Murrieta S.A.

      Mark or sign cited in the opposition proceedings: Spanish word mark (No 2.315.558) ‘YGAI’ and Community figurative mark (No 1.707.729) and Community word mark (No 1.699.412) ‘MARQUES DE MURRIETA YGAY’, for goods in Class 33 (wines).

      Decision of the Opposition Division: Opposition upheld.

      Decision of the Board of Appeal: Appeal dismissed.

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


title: Case T-388/07: Action brought on 10 October 2007 — Comune di Napoli v Commission

text:
               24.11.2007

               EN

               Official Journal of the European Union

               C 283/40

         Action brought on 10 October 2007 — Comune di Napoli v Commission
   (Case T-388/07)
   (2007/C 283/73)
   Language of the case: Italian
   Parties

      Applicant: Comune di Napoli (represented by: F. Sciaudone, lawyer, and G. Tarallo, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul Decision C(2007) 3893 of the European Commission of 8 August 2007;

               —

               order the Commission to make good the damage;

               —

               order the Commission to pay the costs of the proceedings.

         Pleas in law and main arguments
   This action seeks the annulment of Commission Decision C(2007) 3893 of 8 August 2007, by which the defendant made a financial correction in the assistance granted by the European Regional Development Fund (ERDF) to the applicant for the development of a ‘Rete di piazze telematiche [infrastructure for universal access to information highways] per la Città di Napoli’, together with compensation for the damage caused by that decision.
   In support of its application for annulment of the contested decision, the applicant makes the following submissions:

               —

               The decision is illogical, inadequate and completely wanting any legal and factual grounds, insofar as the Commission deliberately failed to take account of all the parameters (both as to form and substance) which should have been examined for the purposes of the correct application of Article 24 of Regulation No 4253/88 and, consequently, its own assessment as to whether the applicant is responsible for the irregularities of which it is accused is irremediably vitiated.

               —

               The concept of irregularity in Article 24 of Regulation No 4253/88 has been misinterpreted and misapplied, insofar as the objections levelled against the applicant do not come within the definition of ‘significant changes’ affecting the nature or conditions of the operation that is being financed or, even less, within the category of ‘sums received unduly’ for the purposes of the Community budget.

               —

               The Commission is responsible for the initial delay of the project, insofar as, even though the date for the initiation of the Project and for the eligibility of expenditure was 1 July 1997, the funding agreement was approved by the Commission on 14 July 2007 and notified to the Comune di Napoli only on 25 July 1997.

               —

               The failure to take into account, for the purposes of assessing the eligibility of the expenditure, the entire seven-month period which it took the Commission to approve the amended version of the project submitted by the applicant.

               —

               The Commission incorrectly concluded that the discovery of asbestos and the subsequent delay caused by its removal did not constitute force majeure.

               —

               The suspensory effect of the judgment of the Tribunale Amministrativo Regionale was incorrectly limited to the period between 2 August 2001 (date of the judgment) and 5 December 2001 (date when the judgment on appeal of the Consiglio di Stato was notified to the applicant) and that period was limited to invoices issued in connection with the contract for the supply of computer technology, the subject matter of the suspension itself.

               —

               Breach of the principle of proportionality, insofar as the Commission totally failed to take account, for the purposes of calculating the reduction in the assistance, of the fact that the applicant had acted in good faith, that the (alleged) irregularities were of a negligible nature and seriousness, that the operation being financed was actually completed and, lastly, the fact that the responsibility for the facts alleged must be attributed in part to the Commission itself and in part to force majeure.

               —

               Breach of the obligation to state reasons, insofar as the Decision does not explain why the alleged irregularities are to be regarded as ‘significant’.

               —

               As regards compensation for damage, the applicant submits that, even if the Commission's conduct were not found to be unlawful, it has nonetheless caused damage to the applicant. The decision ordering repayment, in particular, caused wholly unforeseeable and exceptional damage, especially in view of the fact that the operation was completed successfully and with the congratulations of the Commission itself.


title: Case C-125/11: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 9 March 2011 — Bundesrepublik Deutschland v Robert Klinke

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/19

         Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 9 March 2011 — Bundesrepublik Deutschland v Robert Klinke
   (Case C-125/11)
   2011/C 269/34
   Language of the case: German

      Referring court

   Bundesverwaltungsgericht

      Parties to the main proceedings

      Applicant: Bundesrepublik Deutschland

      Defendant: Robert Klinke

      Question referred

   Does Council Directive 2000/78/EC establishing a general framework for equal treatment in employment (1) and occupation apply to national legislation on the grant of assistance to public servants in cases of illness?

      (1)  OJ 2000 L 303, p. 16


title: Reference for a preliminary ruling from the Tribunale di Genova by orders of 27 June 1996 (Case C-279/96) and 19 July 1996 (Cases C-280/96 and C-281/96) in the cases of: 1. Ansaldo Energia SpA v. Amministrazione Finanziaria dello Stato, 2. Amministrazione delle Finanze dello Stato v. Marine Insurance Consultants SRL, and 3. G. M. B. SRL and Others v. Amministrazione delle Finanze dello Stato (Joined Cases C-279/96, C-280/96 and C-281/96)

text:
 26 . 10 . 96            EN                  Official Journal of the European Communities                                 No C 318/3
 Reference for a preliminary ruling from the Hessisches                 Reference for a preliminary ruling from the Tribunale di
 Landesarbeitsgericht by order of that court of 1 July 1996 in          Genova by orders of 27 June 1996 ( Case C-279/96 ) and
 the case of Hans-Jorg Dick v. EB-Schulungs-Gesellschaft                19 July 1996 ( Cases C-280/96 and C-281/96 ) in the cases
                       mbH ( in liquidation )                           of: 1 . Ansaldo Energia SpA v. Amministrazione Finanziaria
                          ( Case C-277/96 )                             dello Stato, 2 . Amministrazione delle Finanze dello Stato v.
                                                                        Marine Insurance Consultants SRL, and 3 . G. M. B. SRL
                             ( 96/C 318/02 )                             and Others v . Amministrazione delle Finanze dello Stato
 Reference has been made to the Court of Justice of the                      (Joined Cases C-279/96 , C-280/96 and C-281 /96 )
 European Communities by a judgment of the Hessisches                                             ( 96/C 318 /04 )
 Landesarbeitsgericht ( Higher Labour Court, Hesse ) of
 1 July 1996 , which was received at the Court Registry on
 20 August 1996 , for a preliminary ruling in the case of               Reference has been made to the Court of Justice of the
 Hans-Jorg Dick v. EB-Schulungs-Gesellschaft mbH ( in                   European Communities by orders of 27 June 1996 and
 liquidation ) on the following question :                              21 August 1996 of the Tribunale di Genova ( Genoa District
                                                                        Court ), which were all received at the Court Registry on
 Does Council Directive 77/ 187/EEC ( l ) apply where :                 21 August 1996 , for a preliminary ruling in the cases of
                                                                        1 . Ansaldo Energia SpA v. Amministrazione Finanziaria
 — an undertaking, engaged in vocational training and                   dello Stato, 2 . Amministrazione delle Finanze dello Stato v.
     retraining, whose trainees are on courses sponsored by             Marine Insurance Consultants SRL, and 3 . G. M. B. SRL
     the employment authorities that lead to qualification              and Others v. Amministrazione delle Finanze dello Stato on
     as an industrial clerical officer, terminates , because            the following questions :
     of its insolvency, its agreements with the employment
     authorities, whereupon a legally independent
     competitor undertaking, that has previously run only               1 . Is national legislation which sets, in respect of the
     courses of other kinds, some independently financed and                 initiation of proceedings to safeguard a right arising
     some sponsored likewise by the employment authorities,                  under Community law, a time limit which starts to run
     takes over under an agreement with those authorities                    before the correct and complete transposition into
     the running of the courses begun by the first                           national law of the Directive conferring that right
     undertaking;                                                            compatible with Community law ?
 — at about the same time the second undertaking enters
     into new contracts of employment with a significant                2 . Is it compatible with Community law to provide a party
     proportion of the teaching staff of the insolvent                       whose rights are recognized as having been infringed,
     undertaking, in order to reinforce its own personnel, and               and to whom repayment of the sums claimed is granted ,
     uses them to teach the courses that it has taken over;                  with a remedial procedure under which the rules as to
     and                                                                     quantum differ from, and compare unfavourably with ,
                                                                             those laid down in respect of actions for repayment
 — the second undertaking is subsequently appointed by the                   between private individuals, and are substantially
     employment authorities to run new courses as well , like                determined by a measure enacted by the same State as
     those previously run by the insolvent undertaking ?                     that which infringed the injured party's rights by failing
                                                                             to fulfil its obligations ?
 (') OJ No L 61 , 5 . 3 . 1977, p . 26 .
 Reference for a preliminary ruling by the Tribunale di
 Genova — Sezione l a Civile by order of that court of 23 May
 1996 in the dispute pending before it between Vezza SpA                Reference for a preliminary ruling from the Tribunal de
                  and Ministero delle Finanze                           Grande Instance de Briey by judgment of that court of
                                                                        8 August 1996 in the case of Didier Tabouillot v. Directeur
                          ( Case C-278/96                                       des Services Fiscaux de Meurthe et de Moselle
                            ( 96/C 318/03 )
                                                                                Case C-284/96 )
 Reference has been made to the Court of Justice of the                                           ( 96/C 318 /05 )
 European Communities by order of the Tribunale di
 Genova — Sezione l a Civile ( Genoa District Court, First
                                                                        Reference has been made to the Court of Justice of the
 Section ) of 23 May 1996 , which was received at the Court             European Communities by a judgment of the Tribunal de
 Registry on 21 August 1996 , for a preliminary ruling in the           Grande Instance de Briey ( Regional Court, Briey ) of
 dispute pending before it between Vezza SpA and Ministero              8 August 1996 , which was received at the Court Registry on
-delle Finanze .
                                                                        22 August 1996 , for a preliminary ruling in the case of
                                                                        Didier Tabouillot v. Directeur des Services Fiscaux de
 The questions referred by the Tribunale di Genova —
 Sezione l a Civile to the Court of Justice for a preliminary           Meurthe et de Moselle ( Chief Tax Inspector for Meurthe et
 ruling are identical with those in Case C-47/95 ( 1 ).                 Moselle ) on the following questions :
 (') OJ No C 119 , 13 . 5 . 1995 , p . 5 .                              1 . Is Article 95 of the EC Treaty to be interpreted as
                                                                             precluding the application of a method for establishing


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

text:
               11.2.2006

               EN

               Official Journal of the European Union

               C 36/9

      JUDGMENT OF THE COURT

   (Grand Chamber)
   of 6 December 2005
   in Case C-66/04: United Kingdom of Great Britain and Northern Ireland v European Parliament, Council of the European Union (1)

   (Foods - Regulation (EC) No 2065/2003 - Smoke flavourings - Choice of legal basis)
   (2006/C 36/16)
   Language of the case: English
   In Case C-66/04: Action for annulment under Article 230 EC, brought on 11 February 2004, United Kingdom of Great Britain and Northern Ireland (Agents: R. Caudwell and M. Bethell, assisted by Lord Goldsmith QC, N. Paines QC and T. Ward, Barrister) v European Parliament (Agents: K. Bradley and M. Moore), Council of the European Union (Agents: M. Sims, E. Karlsson and F. Ruggeri Laderchi), supported by: Commission of the European Communities (Agents: J.-P. Keppenne, N. Yerrell and M. Shotter) — the Court (Grand Chamber), composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas and K. Schiemann, Presidents of Chambers, S. von Bahr, J.N. Cunha Rodrigues, R. Silva de Lapuerta (Rapporteur), K. Lenaerts, P. Kūris, E. Juhász, A. Borg Barthet and M. Ilešič, Judges; J. Kokott, Advocate General; K. Sztranc, Administrator, for the Registrar, gave a judgment on 6 December 2005, in which it:

               1.

               Dismisses the action;

               2.

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

               3.

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

      (1)  OJ C 94 of 17. 04. 2004.


title: Case T-5/06: Action brought on  9 January 2006  — Denmark v Commission

text:
               25.3.2006

               EN

               Official Journal of the European Union

               C 74/28

         Action brought on 9 January 2006 — Denmark v Commission
   (Case T-5/06)
   (2006/C 74/53)
   Language of the case: Danish
   Parties

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

      Defendant: Commission of the European Communities
   Form of order sought
   The applicant claims that the Court should:

               —

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

               —

               order the Commission to pay the costs of the proceedings.

         Pleas in law and main arguments
   By the contested decision the Commission exempted the material DecaBDE in polymeric applications from the prohibition contained in Directive 2002/95/EC of the European Parliament and of the Council of 27 January 2003 on the restriction of the use of certain hazardous substances in electrical and electronic equipment (2) (‘the basic directive’).
   The Danish Government submits that the contested decision is defective in law inasmuch as DecaBDE in polymeric applications is exempted from the prohibition in the basic directive, contrary to the conditions laid down therein, on the grounds that

               —

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

               —

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

               —

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

               —

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

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

      (1)  OJ 2005 L 271, p. 48.

      (2)  OJ 2003 L 37, p. 19.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 1 February 1996 in Case T-122/95: Daniel Chabert v. Commission of the European Communities (Officials - Household allowance - Recovery of undue payment)

text:
No C 77/ 10           EN                    Official Journal of the European Communities                                  16 . 3 . 96
      Removal from the register of Case C-108/95 (')                   from the register of Case C-252/95 : Commission of the
                           ( 96/C 77/22 )                              European Communities v. French Republic .
By order of 15 November 1995 the President of the Court of             f 1 ) OJ No C 248 , 23 . 9 . 1995 .
Justice of the European Communities ordered the removal
from the register of Case C-108/95 : Commission of the
European Communities v. Federal Republic of Germany .
(•) OJ No C 159 , 24 . 6 . 1995 .                                             Removal from the register of Case C-211 /94 ( 1 )
                                                                                96/C 77/25 )
                                                                       By order of 6 December 1995 the President of the Court of
                                                                       Justice of the European Communities ordered the removal
      Removal from the register of Case C-316/94 (')                   from the register of Case C-211 /94 ( reference for a
                           ( 96/C 77/23 )                              preliminary ruling from the Tribunal de Grande Instance de
                                                                       Caen ): criminal proceedings against Dominique Luback.
By order of 1 December 1995 the President of the Court of
Justice of the European Communities ordered the removal                (') OJ No C 275 , 1 . 10 . 1994 .
from the register of Case C-316/94 ( reference for a
preliminary ruling from the Tribunal de Commerce de
Bruxelles ): Belgian State v. Turner International Sales Ltd
and Coditel Brabant SA .
                                                                              Removal from the register of Case C-162/95 ( )
(') OJ No C 386 , 31 . 12 . 1994 .                                                                  ( 96/C 77/26 )
                                                                       By order of 19 December 1995 the President of the Court of
                                                                      Justice of the European Communities ordered the removal
                                                                       from the register of Case C- 162/95 ( reference for a
      Removal from the register of Case C-252/95 ( )                   preliminary ruling from the Tribunal de Police de Nancy ):
                           ( 96/C 77/24 )                              criminal proceedings against Philippe Baumert and Jean
                                                                       Loup Dirler.
By order of 1 December 1995 the President of the Court of
Justice of the European Communities ordered the removal                (') OJ No C 189 , 22 . 7 . 1995 .
                                                     COURT OF FIRST INSTANCE
JUDGMENT OF THE COURT OF FIRST INSTANCE                                application, first, for the annulment of the decision of the
                     of 1 February 1996                                Commission of 6 October 1994 requiring the applicant to
in Case T-122/95 : Daniel Chabert v. Commission of the
                                                                       repay the sum of Bfr 215 354 unduly paid by way of
                                                                       household allowance and, second, an order requiring the
                  European Communities ( 1 )                           Commission to repay the sums deducted from the
(Officials — Household allowance — Recovery of undue                   applicant's salary since November 1994, together with
                              payment)                                 default interest at the rate of 8 % per annum — the Court of
                           ( 96/C 77/27 )                              First Instance ( Fifth Chamber ), composed of R. Schintgen,
                                                                       President, and R. Garcia-Valdecasas and J. Azizi, Judges;
                                                                       B. Pastor, Registrar, has given a judgment on 1 February
                                                                       1996 , in which it:
               (Language of the case: French)
                                                                       1.    Dismisses the action .
In Case T-122/95 : Daniel Chabert, an official of the                  2 . Orders the parties to bear their own costs.
Commission of the European Communities, residing at
Kraainem       ( Belgium ),       represented     by     Georges
Vandersanden, of the Brussels Bar, with an address for                 (') OJ No C 208 , 12 . 8 . 1995 .
service in Luxembourg at the offices of Fiduciaire Myson
SARL, 1 Rue Glesener, v. Commission of the European
Communities ( Agent: Ana Maria Alves Vieira ) —


title: Case C-131/99: Action brought on 16 April 1999 by the Commission of the European Communities against the Portuguese Republic

text:
17.7.1999              EN                     Official Journal of the European Communities                                          C 204/25
     to any aid granted, for which reason the Commission has             (4) Commission Regulation (EEC) No 334/93 of 15 February 1993
     no legal basis for taking action, having relied exclusively             laying down detailed implementing rules for the use of land set
     on grounds of expediency and immediacy, in the context                  aside for the provision of materials for the manufacture within
     of clearance of the accounts of the EAGGF Guarantee                     the Community of products not primarily intended for human or
                                                                             animal consumption (OJ L 38 of 16.2.1993, p. 12).
     Section, applying a financial adjustment to the expenditure         (5) Commission Regulation (EEC) No 536/93 of 9 March 1993 laying
     incurred by Spain in the sector in question. The fact is that,          down detailed rules on the application of the additional levy on
     where necessary, it is open to the Commission to challenge              milk and milk products (OJ L 57 of 10.3.1993, p. 12).
     action taken by a Member State by means of an action                (6) Council Regulation (EEC) No 729/70 of 21 April 1970 on the
     before the Court of Justice for failure to fulfil obligations.          financing of the Common Agricultural Policy (OJ, English Special
                                                                             Edition 1970 (1), p. 218).
                                                                         (7) Commission Regulation (EEC) No 1546/88 of 3 June 1988 laying
                                                                             down detailed rules for the application of the additional levy
(f) Flax                                                                     referred to in Article 5c of Regulation (EEC) No 804/68 (OJ L 139
                                                                             of 4.6.1988, p. 12).
— PTE 40 359 739 (aid for fibre flax): for the marketing year            (8) Commission Regulation (EEC) No 1164/89 of 28 April 1989
                                                                             laying down detailed rules concerning the aid for fibre flax and
     to which the adjustment was applied, the Community rules                hemp (OJ L 121, 29.4.1989, p. 4).
     did not expressly mention minimum quantifies of seed,
     but merely referred to the carrying out of normal culti-
     vation work (Article 4(a) of Commission Regulation
     1164/89) (8).
(g) Failure to observe time-limits for payment
— PTE 3 362 203 596 (payments made outside the time-                     Action brought on 16 April 1999 by the Commission
     limits laid clown by the Community legislation): the                of the European Communities against the Portuguese
     Kingdom of Spain considers that, since the requisite                                               Republic
     procedures for accepting or rejecting expenditure have not
     been completed, the normal procedure is to separate the                                        (Case C-131/99)
     sums in question and exclude them from the clearance of
     accounts until a later date.
                                                                                (1999/C 204/46)
     In general, breach of the following principles of Com-
     munity law:                                                         An action against the Portuguese Republic was brought before
                                                                         the Court of Justice on 16 April 1999 by the Commission of
     — the principle of a right to the hearing: this principle           the European Communities, represented by Francisco de Sousa
         has been infringed in relation to all the adjustments           Fialho, of its Legal Service, acting as Agent, with an address for
         contested in the application. It was formally observed,         service in Luxembourg at the office of Carlos Gómez de la
         but in practice the Commission’s replies are confined           Cruz, also of its Legal Service, Wagner Centre, Kirchberg.
         to repetition of the same points, without contradiction
         or rebuttal of the arguments put forward;
                                                                         The applicant claims that the Court of Justice should:
     — lack of evidence of the wrongful action imputed to the
         Member State: the Commission based the adjustments              — Declare that, by not bringing into force or informing the
         either on indicia or suspicions, or on data which had                Commission of all the laws, regulations and administrative
         been rebutted or corrected by the Spanish authorities;               provisions necessary to comply fully with Article 3(1)
                                                                              and Annex I, points 1.3 and 3.2, of Council Directive
     — the principle of sound administration;                                 84/360/EEC (1) of 28 June 1984 on the combating of air
                                                                              pollution from industrial plants, the Portuguese Republic
     — the principle of appropriateness of the penalty: this                  has failed to fulfil its obligations under Article 16 of that
         principle was infringed in particular with regard to                 directive and the third paragraph of Article 189 of the EC
         olive oil production aid. It is not permissible to refuse            Treaty;
         to refund the aid paid in advance merely because
         certain data bases have not been finalised; such action         — Order the Portuguese Republic to pay the costs.
         can only be based on a duly substantiated lack of
         checking which has been detrimental to the Com-
         munity budget;                                                  Contentions and principal arguments adduced in support
     — in the alternative, breach of the principle of pro-
         portionality.                                                   Under the third paragraph of Article 189 (now, after amend-
                                                                         ment, Article 249) of the Treaty, a directive is binding on the
                                                                         Member State to which it is addressed as regards the result to
(1) OJ L 061 of 10 March 1999, p. 34.                                    be achieved. Although the prescribed period expired on 30
(2) OJ L 061 of 10 March 1999, p. 37.                                    June 1987 (see Article 16 of the directive and Article 392 of
(3) Of 23 December 1992 laying down detailed rules for applying          the Accession Treaty), the Portuguese Republic has not yet
    the integrated administration and control system for certain         adopted all the provisions needed to ensure that its domestic
    Community aid schemes (OJ L 391 of 31.12.1992, p. 36).               law fully complies with the directive, since:
 ---pagebreak--- C 204/26                EN                         Official Journal of the European Communities                                     17.7.1999
— The Portuguese legislation does not impose the obligation                   Reference for a preliminary ruling from the Pretura di
     to seek prior authorisation from the competent authorities               Treviso, Oderzo Division, by order of that court of 7
     for the operation of coal gasification and liquefaction                  April 1999, in the case of Giuseppe Busolin and Others
     plants, as provided for in Article 3(1) and point 1.3 of                 against Ispettorato Centrale Repressione Frodi — Ufficio
     Annex I to the directive. The fact that, possibly, there are             di Conegliano — Ministero delle Risorse Agricole, Ali-
     no coal gasification and liquefaction plants in Portugal at                                    mentari e Forestali
     the present time is irrelevant.
— The Portuguese legislation does not impose the obligation                                           (Case C-155/99)
     to seek prior authorisation from the competent authorities
     for the operation of plants for the manufacture of asbestos,
     as provided for in Article 3(1) and point 3.3 of Annex I to
     the directive.                                                                                (1999/C 204/48)
(1) OJ L 188 of 16 July 1984, p. 20.                                          Reference has been made to the Court of Justice of the
                                                                              European Communities, by order of the Pretura di Treviso,
                                                                              Oderzo Division, of 27 April 1999, for a preliminary ruling in
                                                                              the case of Giuseppe Busolin and Others against Ispettorato
                                                                              Centrale Repressione Frodi — Ufficio di Conegliano —
                                                                              Ministero delle Risorse Agricole, Alimentari e Forestali on the
                                                                              following questions:
                                                                              — whether the Commission’s decision to allocate the quantity
                                                                                for compulsory distillation between the various production
                                                                                regions for the wine year 1993/94 (as referred to in
Reference for a preliminary ruling by the Tribunal de                             Regulation (EC) No 343/94) (1) was invalid for infringe-
Première Instance de Tournai by judgment of that court                            ment of Article 39(11)(b) of Regulation (EEC)
of 31 March 1999 in the case of Floridienne S.A. and                              No 822/87(2) (as amended by Regulation (EEC)
           Berginvest S.A. against the Belgian State                              1972/87) (3) through failure to ascertain the existence of
                                                                                the statutory prerequisite under that same legislation,
                                                                                namely a significant difference between the quantities
                           (Case C-142/99)                                        available/normal consumption ratio for 1993/94 and the
                                                                                same ratio for the reference years 1981/82, 1982/83 and
                                                                                1983/84;
                           (1999/C 204/47)
Reference has been made to the Court of Justice of the                        — whether the Commission’s decision to allocate the quantity
European Communities by judgment of the Tribunal de                               for compulsory distillation between the various production
Première Instance, Tournai (Court of First Instance, Tournai)                     regions for the year 1993/94 (pursuant to Regulation (EC)
of 31 March 1999, received at the Court Registry on 21 April                      No 343/94) was valid, given that it appears to be defective
1999, for a preliminary ruling in the case of Floridienne S.A.                    for infringement of Article 190 (or for an ‘inadequate
and Berginvest S.A. v Belgian State on the following question:                    statement of reasons’) of the EC Treaty in that neither
                                                                                Regulation No 343/94 nor the measures and documents
                                                                                underlying refer to any assessment as to the existence of
                                                                                the statutory precondition that the ratio between quantities
‘Must share dividends and interest on loans always be excluded                    available and normal consumption for the year 1993/94
from the denominator of the fraction (1) used to calculate the                    should differ significantly from that for the reference years
deductible proportion, even where the company receiving such                      1981/82, 1982/83 and 1983/84;
dividends and interest has involved itself in the management of
the undertakings paying or allocating them, save in the exercise
of its rights as shareholder?’
                                                                              — whether Regulation (EC) No 343/94, requiring Italy to
                                                                                distil 12 150 000 hl, is invalid for infringement of the
                                                                                principle of reasonableness, manifest error and inconsist-
                                                                                ency in relation to the object pursued, in the light of the
(1) The fraction referred to in Article 19 of the Sixth Council Directive         system of calculation used by the Commission ... on
    77/388/EEC of 17 May 1977 on the harmonisation of the laws                    account of the unreasonableness and illogicality of the
    of the Member States relating to turnover taxes — Common
    system of value tax : uniform basis of assessment (OJ 1977 L 145,             updating of the percentage of 85 (4), comparing parameters
    p. 1).                                                                        that were entirely divorced from the reality of the wine
                                                                                market in 1993/94. Moreover, for the reasons and in the
                                                                                light of the calculations given above, the same rules also
                                                                                appear to be invalid as being discriminatory against Italy
                                                                                and thus in breach of the prohibition on discrimination in
                                                                                Article 40 of the EC Treaty;


21.6.2003              EN                      Official Journal of the European Union                                        C 146/37
        Removal from the register of Case C-412/02 ( 1)                        Removal from the register of Case C-413/02 ( 1)
                          (2003/C 146/66)                                                        (2003/C 146/67)
By order of 11 March 2003 the President of the Court of
Justice of the European Communities ordered the removal                By order of 13 March 2003 the President of the Court of
from the register of Case C-412/02 (Reference for a preliminary        Justice of the European Communities ordered the removal
ruling by the Hof van Cassatie): Belgian Refining Corporation          from the register of Case C-413/02 (Reference for a preliminary
and Others v Ministerie van Financiën.                                 ruling by the Hof van Cassatie): F. Sips v Ministerie van
                                                                       Financiën.
( 1) OJ C 55 of 8.3.2003.
                                                                       (1 ) OJ C 55 of 8.3.2003.