title: Case T-403/03: Action brought on 15 December 2003 by Marmara Import-Export GmbH against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
C 71/30                 EN                            Official Journal of the European Union                                        20.3.2004
reassign the applicant to the post of Principal Adviser at the                Pleas in law and main arguments
statistical office of the European Communities (Eurostat) and
of the decision of 1 October 2003 reorganising Eurostat and,
second, for the Commission to undertake the steps necessary                   Applicant for Com-            The applicant.
to enable the applicant to resume her functions as Director as                munity trade mark:
soon as possible — the President of the Court of First Instance
made an order on 25 November 2003, the operative part of                      Community trade mark          The word and figurative mark
which is as follows:                                                          sought:                       ‘marmara’ for goods in Classes 29,
                                                                                30, 31, 32 and 33 (inter alia,
                                                                                meat, fish, poultry and game) —
1.    The application for interim relief is dismissed.                                                      Application No 1 443 258.
                                                                              Proprietor of mark or         Marmara Zeytin Tarim Satis
2.    Costs are reserved.                                                     sign cited in the oppo-       Kooperatifleri Birligi.
                                                                              sition proceedings:
                                                                              Mark or sign cited in         The Community trade mark
                                                                              opposition:                   ‘MARMARABIRLIK’ for goods in
                                                                                Class 29 (inter alia, meat, fish,
                                                                                poultry and game) — Trade mark
                                                                                No 681 429.
Action brought on 15 December 2003 by Marmara                                 Decision of the Oppo-         Rejection of the opposition.
Import-Export GmbH against the Office for Harmonis-                           sition Division:
ation in the Internal Market (Trade Marks and Designs)
                               (OHIM)                                         Decision of the Board of      The decision of the Opposition
                                                                              Appeal:                       Division was annulled and the
                                                                                appeal allowed.
                           (Case T-403/03)
                                                                              Pleas in law:                 There is no likelihood of con-
                                                                                fusion between the two marks
                            (2004/C 71/57)
                                                                                within     the      meaning      of
                                                                                Article 8(1)(b) of Regulation (EC)
(Language of the case to be determined pursuant to Article 131(2)                                           No 40/94.
of the Rules of Procedure — language in which the application was
                          submitted: German)
An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the                       Action brought on 17 December 2003 by AMS Advanced
Court of First Instance of the European Communities on                        Medical Services against the Office for Harmonisation in
15 December 2003 by Marmara Import-Export GmbH, Düssel-                         the Internal Market (Trade Marks and Designs) (OHIM)
dorf (Germany), represented by G. Rother and A. von
Arnswaldt, lawyers. Marmara Zeytin Tarim Satis Kooperatifleri
Birligi, Bursa (Turkey), was also a party to the proceedings                                           (Case T-425/03)
before the Board of Appeal.
                                                                                (2004/C 71/58)
The applicant claims that the Court should:                                   (Language of the case to be determined pursuant to Article 131(2)
                                                                              of the Rules of Procedure — language in which the application was
—     annul the decision of the First Board of Appeal of the                                          submitted: German)
      Office for Harmonisation in the Internal Market (Trade
      Marks and Designs) of 1 October 2003 (R 515/2002-1);
—     reject the opposition of the other party to the proceedings             An action against the Office for Harmonisation in the Internal
      before the Board of Appeal;                                             Market (Trade Marks and Designs) was brought before the
                                                                              Court of First Instance of the European Communities on
                                                                              17 December 2003 by AMS Advanced Medical Services,
—     stay proceedings until a decision has been given on the                 Mannheim (Germany), represented by G. Lindhofer, lawyer.
      application for a declaration of invalidity;                            American Medical Systems, Inc., Minnetonka (United States of
                                                                              America), was also a party to the proceedings before the Board
—     order the defendant Office to pay the costs.                            of Appeal.


title: Case C-377/99: Action brought on 7 October 1999 by the Federal Republic of Germany against the Commission of the European Communities

text:
18.12.1999              EN                   Official Journal of the European Communities                                      C 366/19
     under tariff headings 2 1 1 1, 2 1 1 2 and 2 1 1 3. Since          Pleas in law and main arguments
     the expenditure declared by Spain under tariff heading
     2 1 1 3 was negative, it was considered that the Com-
     mission would not take account of that line for the                The action is directed against the fact that the contested
     purposes of the calculation of the total amount of the             decision charged to the Federal Republic of Germany, with
     financial adjustment. However, the adjustment in respect           respect to Mecklenburg-Vorpommern, instead of a financial
     of heading 2 1 1 3 made by the Commission corresponds              correction of 2 % a correction of 5 %, and hence an amount in
     solely to the item relating to purchases and not to the total      excess of DEM 12 157 646,13, namely DEM 18 236 469,20,
     amount of expenditure declared by Spain under the tariff           for 1995 for the arable crops sector.
     heading during the financial year, which significantly
     increases the proposed adjustment, thus departing from
     the letter of the official communication.                          The Commission was not able, in the annex to the Summary
                                                                        Report, to produce any comprehensible and substantiated
                                                                        reasons to show that the entire ‘on-the-spot control’ measure
(C) The differences found during the prior inspection referred
                                                                        in Mecklenburg-Vorpommern was defective and that all the
     to in the summary report are similar to those detected in
                                                                        defects taken together led to a substantial risk of loss for the
     other Member States, where the percentage applied in the
                                                                        EAGGF, justifying a correction of 5 %. In particular, it was
     financial adjustment has been only 2 % as opposed to the
                                                                        unable, on the basis of its inspection visit to Mecklenburg-
     5 % applied to Spain.
                                                                        Vorpommern in 1998, to adduce any new facts capable of
                                                                        justifying that assessment.
(1) OJ L 182 of 16 July 1994, p. 45.
                                                                        The increase of the financial correction from 2 % to 5 % by
                                                                        the Commission is unlawful because the Commission complied
                                                                        neither with the principle that the administrative authorities
                                                                        are bound by the reservation they formulated nor with the
                                                                        necessary procedural rules with respect to the procedure
                                                                        for closure of the accounts, in particular arbitration. The
                                                                        Commission further incorrectly exercised its discretion with
                                                                        respect to assessment of the defects actually found.
Action brought on 7 October 1999 by the Federal Repub-                  Altogether, the Commission has not shown conclusively why
lic of Germany against the Commission of the European                   in its definitive fixing of the financial correction it departed
                            Communities                                 both from its originally intended rate of correction and from
                                                                        the rate proposed by the arbitration body of not more than
                                                                        2 %.
                          (Case C-377/99)
                          (1999/C 366/30)
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 7 October 1999 by the Federal Republic of
Germany, represented by Wolf-Dieter Plessing, Ministerialrat,
and Claus-Dieter Quassowski, Regierungsdirektor, of the Feder-          Reference for a preliminary ruling by the Bundesarbeits-
al Ministry of Financial Affairs, 108 Graurheindorfer Strasse,          gericht by order of that court of 23 March 1999 in the
D-53117 Bonn.                                                           case of Pensionskasse für die Angestellten der Barmer
                                                                                Ersatzkasse VVAG v Hans Menauer
The applicant claims that the Court should:
                                                                                (Case C-379/99)
— Annul Commission Decision COM(1999) 2476 fin. of
     28 July 1999 amending Decision 1999/187/EC on the
     clearance of the accounts presented by the Member States                                   (1999/C 366/31)
     in respect of the expenditure for 1995 of the Guarantee
     Section of the European Agricultural Guidance and
                                                                        Reference has been made to the Court of Justice of the
     Guarantee Fund (EAGGF) in so far as under Article 2 the
                                                                        European Communities by order of the Bundesarbeitsgericht
     sum of DEM 18 236 469,20 is not accepted by the EAGGF
                                                                        (Federal Labour Court) of 23 March 1999, received at the
     but charged to the Federal Republic of Germany;
                                                                        Court Registry on 7 October 1999, for a preliminary ruling in
                                                                        the case of Pensionskasse für die Angestellten der Barmer
— Order the defendant to pay the costs.                                 Ersatzkasse VVAG v Hans Menauer on the following question:


title: Case T-55/03: Action brought on 12 February 2003 by Philippe Brendel against Commission of the European Communities

text:
26.4.2003               EN                         Official Journal of the European Union                                         C 101/47
In support of its claims the applicant alleges, in the alternative,              and the remuneration corresponding to classification in
that the defendant infringed Article 15(2) of Regulation No 17,                  the next higher grade and step, together with default
Article 253 EC and the principles of proportionality and of                      interest at 5,7 % per annum as from 16 March 2001;
equal treatment by:
                                                                           —     order the defendant to pay damages and interests assessed,
—      imposing on the applicant a fine in excess of 10 % of its                 ex æquo et bono, at EUR 500 a month as from 16 March
       worldwide turnover;                                                       2001 until the date they are paid;
—      imposing on the applicant an global fine in respect of              —     order the defendant to pay the costs.
       allegedly discrete infringements;
—      increasing the ‘starting amount’ as a deterrent and on the
       ground of aggravating circumstances;                                Pleas in law and main arguments
—      applying an excessive multiplication factor;
                                                                           The applicant in these proceedings challenges the decision of
                                                                           the appointing authority refusing to classify him in Grade A6,
—      not reducing the fine on the ground of attenuating                  Step 3, on his taking up his duties with the defendant following
       circumstances or by virtue of the ‘Amnesty Notice’ (1).             competition EUR/A/154 for the recruitment of administrators
                                                                           (career bracket A 7/A 6) in auditing and accounting.
( 1) Published in OJ 1996 C 207 p. 4.
                                                                           In support of his claims he alleges:
                                                                           —     infringement of Article 31(2) of the Staff Regulations, of
                                                                                the decision of 1 September 1983 on the criteria
                                                                                applicable to appointment to grade and classification in
                                                                                step on recruitment and of the Administrative Guide;
Action brought on 12 February 2003 by Philippe Brendel                     —     infringement of the principle patere quam ipse legem
     against Commission of the European Communities                              fecisti and of equal treatment;
                                                                           —     that there was in the circumstances a manifest error of
                           (Case T-55/03)                                        assessment;
                          (2003/C 101/82)                                  —     disregard of the duty to have regard to the interests of
                                                                                officials and the duty to state reasons;
                    (Language of the case: French)                         —     infringement of Article 39 EC.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 12 February 2003 by Philippe
Brendel, residing in Brussels, represented by Georges Vander-
sanden and Laure Levi, lawyers.
                                                                           Action brought on 10 February 2003 by Bioelettrica S.p.A.
                                                                           against the Commission of the European Communities
The applicant claims that the Court should:
                                                                                (Case T-56/03)
—      annul the decision taken by the appointing authority of
       3 May 2002 classing the applicant in Grade A 7, Step 2                                       (2003/C 101/83)
       with effect from 16 March 2001 and, so far as is
       necessary, annul the decision of 25 October 2002,
       notified on 4 November 2002, to reject the applicant’s                                  (Language of the case: Italian)
       complaint;
—      order the defendant to pay the balance of the remuner-
       ation consisting of the difference between the remuner-             An action against the Commission of the European Communi-
       ation corresponding to classification in Grade A 7, Step 2,         ties was brought before the Court of First Instance of the


title: Case T-101/03: Action brought on 14 March 2003 by Suproco N.V. against the Commission of the European Communities

text:
C 135/32              EN                          Official Journal of the European Union                                          7.6.2003
4 February 2003 by Osotspa Co., Ltd., Bangkok, Thailand,                  Pleas in law:                  The applicant claims that a mini-
represented by C. Gassauer-Fleissner, lawyer, with an address                                            mal degree of similarity between
for service in Luxembourg. Distribution & Marketing GmbH,                                                the marks is sufficient for a find-
Salzburg, Austria, was also a party to the proceedings before                                            ing that there is a likelihood of
the Board of Appeal.                                                                                confusion because the goods are
                                                                                identical
The applicant claims that the Court should:
—     vary the contested decision of the Third Board of Appeal
      of 27 November 2002 in appeal proceedings No R 296/
      2002-3 so as to allow the applicant’s opposition to the             Action brought on 14 March 2003 by Suproco N.V.
                                                                            against the Commission of the European Communities
      application for registration of the mark ‘Hai’ filed by
      Distribution & Marketing GmbH on 10 September 1997
      and refuse the application for registration;                                                 (Case T-101/03)
—     in the alternative, refer the case back to the Office for                                    (2003/C 135/53)
      Harmonisation in the Internal Market;
                                                                                (Language of the case: Dutch)
—     order the defendant to pay the applicant’s costs.
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
                                                                          European Communities on 14 March 2003 by Suproco
                                                                          N.V., having its registered office in Curação, represented by
Pleas in law and main arguments                                           M.M. Slotboom and N.J. Helder.
                                                                          The applicant claims that the Court should:
Applicant for Com-             Distribution & Marketing GmbH
munity trade mark:                                                        —     declare its action to be admissible;
                                                                          —     annul the European Commission decision of 10 January
Community trade mark           The word mark ‘Hai’ for goods                    2003 addressed to the Member States and refusing to
sought:                        and services in Classes 5, 32, 33,               grant a derogation from Council Decision 2001/822/EC
                               35 and 42 (inter alia, vitamin                   in regard to the rules of origin for sugar from the
                               preparations,      fruit      juices,            Netherlands Antilles;
                               alcoholic beverages, catering for
                               guests) (application No 628172)            —     order the Commission to pay the costs of the proceedings.
Proprietor of mark or          The applicant, Osotspa Co., Ltd.
sign cited in the oppo-
sition proceedings:                                                       Pleas in law and main arguments
Mark or sign cited in          The Community figurative mark              The applicant is a sugar-processing undertaking established in
opposition:                    No 168427 and the national figu-           the Netherlands Antilles. It imported, inter alia, sugar from a
                               rative mark ‘Shark’ for goods in           cane-sugar supplier in Columbia. It processed this sugar into
                               Class 32 (non-alcoholic drinks,            brown granulated sugar and sugar lumps and re-exported it to
                               syrups and other preparations for          the EC pursuant to Article 3 of Annex II and Appendix 2 to
                               making beverages)                          Annex II to Decision 91/482/EEC (1). On the basis of those
                                                                          rules the applicant’s products were treated as being products
                                                                          of OCT origin.
Decision of the Oppo-          Rejection of the applicant’s oppo-
sition Division:               sition
                                                                          Similar rules have also been adopted in Article 4 of Annex III
                                                                          and Appendix 2 ( 2) to Annex III to Decision 2001/822
Decision of the Board of       Dismissal of the appeal                    (the OCT Decision) ( 3), which replaces Decision 91/482/EEC.
Appeal:                                                                   Article 5(1)(g) of Annex III to the present OCT Decision,
 ---pagebreak--- 7.6.2003               EN                        Official Journal of the European Union                                            C 135/33
however, provides that operations to colour sugar or to form             Commission, it argues, was wrong to turn down the request
sugar lumps constitute insufficient processing to confer OCT             for a derogation on the ground that, both for sugar from an
origin. Those products of the applicant thus no longer qualify           ACP country and for sugar from a non-ACP country, the added
for OCT origin.                                                          value after processing by the applicant came to more than
                                                                         45 %. According to the applicant, Article 37(7) of Annex III to
                                                                         the OCT Decision makes no provision for such a comparison
                                                                         and consequently makes no provision for any such ground for
The Kingdom of the Netherlands subsequently applied for a                rejection of the request for a derogation.
derogation in favour of the applicant. That request was rejected
in the contested decision.
                                                                         (1 ) Council Decision 91/482/EEC of 25 July 1991 on the association
                                                                              of the overseas countries and territories with the European
                                                                              Economic Community (OJ 1991 L 263, p. 1).
The applicant first of all raises an objection that Article 5(1)(g)      (2 ) Appendix 2 to Annex III to Council Decision 2001/822/EC of
of Annex III to the OCT Decision is unlawful. In the applicant’s              27 November 2001 on the association of the overseas countries
view, it is incorrect to state that operations to colour sugar or             and territories with the European Community (‘the OCT Decision’)
to form sugar lumps constitute insufficient processing for the                (OJ 2001 L 324, p. 1).
                                                                         (3 ) Council Decision 2001/822/EC of 27 November 2001 on the
purpose of conferring OCT origin. The applicant submits that
                                                                              association of the overseas countries and territories with the
this provision infringes the principle of non-discrimination                  European Community (‘the OCT Decision’) (OJ 2001 L 314, p. 1).
and that it is arbitrary and at variance with the principles of
the protection of legitimate expectations and of legal certainty.
The applicant goes on to argue that the Commission had no
power in view of the fact that the contested decision was
adopted after the expiry of the decision-making period of 75
working days laid down in Article 37(8)(a) of Annex III to the           Action brought on 28 March 2003 by Arran Aromatics
OCT Decision. The applicant contends that the request for a              Limited, Mr Iain Russel and Mr Allastair Rennick against
derogation ought therefore to be deemed to have been                             the Commission of the European Communities
accepted pursuant to Article 37(8)(b) of Annex III to the OCT
Decision.
                                                                                (Case T-109/03)
The applicant concludes by arguing that there has been a                                             (2003/C 135/54)
breach of Article 37 of Annex III to the OCT Decision and a
manifest misappraisal of the facts. The applicant submits that                                (Language of the case: English)
the Commission is confusing the conditions of Article 37 of
Annex III to the OCT Decision.
                                                                         An action against the Commission of the European Communi-
The applicant argues that cumulation of origin does not                  ties was brought before the Court of First Instance of the
represent an alternative solution for it. Importation of ACP             European Communities on 28 March 2003 by Arran Aro-
sugar cannot be justified in view of the high price. Such sugar,         matics Limited, Isle of Arran, Scotland, Mr Iain Russel, Isle of
it argues, is also unsuitable with regard to quality. The                Arran, Scotland, and Mr Allastair Rennick, Isle of Arran,
applicant submits that the condition governing derogation set            Scotland, represented by Mr C. Pouncey, Solicitor and
out in Article 37(4) of Annex III to the OCT Decision is                 Mr L. Van Den Hende, lawyer.
thereby also satisfied.
                                                                         The applicant claims that the Court should:
The applicant goes on to argue that, under Article 37(3)(b) of           —      Order the defendant to pay damages pursuant to
Annex III to the OCT Decision, application of the existing                      Article 288 EC for the losses sustained by them through
rules of origin would significantly reduce its prospects of                     the breaches of community law set out in the application,
continuing to export to the EC. In its view, the Commission is                  all sums to be increased with compensatory interest at a
wrong to impose as a necessary condition for a derogation the                   rate of 8 % to be applied from the day on which the
requirement that application of the existing rules of origin                    damage materialised;
would lead to cessation of its activities.
                                                                         —      Order the defendant to pay legal interest on such sums as
                                                                                are found to be due at a rate of 8 %;
The applicant further contends that the Commission misap-
plied Article 37(7) of Annex III to the OCT Decision. The                —      Order the defendant to pay the costs of the proceedings.


title: Action brought on 10 March 1998 by Emesa Sugar (Free Zone) NV against the Commission of the European Communities (Case T-44/98)

text:
C 151/10              EN                 Official Journal of the European Communities                                     16.5.98
Communities on 10 March 1998 by Emesa Sugar (Free                   3. Article 240(1) and (3) of Decision 91/482/EEC
Zone), established in Oranjestad, Aruba, represented by                  precludes an amendment of that Decision after
G. van der Wal, lawyer with right of audience before the                 1 March 1995 or, at least, an amendment with effect
Hoge Raad der Nederlanden, with an address for service                   from 1 December 1997;
in Luxembourg at the Chambers of A. May, of the
Luxembourg Bar, 31 Grand-Rue.                                       4. breach of the principle of legal certainty (principle of
                                                                         legitimate expectations): absence of transitional period
                                                                         and transitional measures;
The applicant claims that the Court should:
                                                                    5. insufficient and incomplete statement of reasons.
1. annul Council Decision 97/803/EC (1) or, at least, the
    amendments to Articles 101, 102 and 108 of Council
                                                                    For the reasons set out in pleas 1 to 5 above, the applicant
    Decision 91/482/EEC (2) and to Article 6 of Annex II
                                                                    considers Decision 97/803/EC, or at least the restrictions
    to Decision 91/482/EEC and the insertion of
                                                                    on imports contained therein, to be a serious breach of
    Article 108b into Decision 91/482/EEC (paragraphs 27
                                                                    superior rules of law for the protection of the applicant's
    to 32 of Decision 97/803/EC);
                                                                    interests.
2. hold that the Community is responsible for the loss              The applicant brings this action as a separate action in
    suffered by Emesa as a result of the fact that the              addition to the application for annulment lodged by it
    importation of sugar from the OCT into the                      (T-44/98).
    Community has been prevented or restricted since
    1 December 1997 as a consequence of Decision 97/                (1) OJ L 329, 29.11.1997, p. 50.
    803/EC;                                                         (2) OJ L 263, 19.9.1991, p. 1. Corrigendum OJ L 15, 23.1.1993,
                                                                        p. 33.
3. order the parties to reach closer agreement as to the
    extent of Emesa's loss and, if no agreement can be
    reached in that respect, order the continuation of
    proceedings within a period to be specified by the
    Court of First Instance in order to determine the
    extent of the loss or, at least order the Community to          Action brought on 10 March 1998 by Emesa Sugar (Free
    pay the provisionally estimated and still to be                 Zone) NV against the Commission of the European
    estimated loss referred to in paragraphs 185 to 197 of                                   Communities
    the application; in the alternative order the                                          (Case T-44/98)
    Community to pay fair compensation, to be
                                                                                (98/C 151/21)
    determined by the Court of First Instance, plus interest
    at the rate specified in paragraph 97;
                                                                                (Language of the case: Dutch)
4. order the Council to pay the costs of the proceedings.           An action against the Commission of the European
                                                                    Communities was brought before the Court of First
                                                                    Instance of the European Communities on 10 March 1998
Pleas in law and main arguments adduced in support:
                                                                    by Emesa Sugar (Free Zone), established in Oranjestad,
                                                                    Aruba, represented by G. van der Wal, lawyer with a right
The applicant seeks compensation for the loss which it              of audience before the Hoge Raad der Nederlanden, with
claims to have suffered as a result of the restrictions on          an address for service in Luxembourg at the Chambers of
the importation of sugar of OCT origin introduced by the            A. May, of the Luxembourg Bar, 31 Grand-Rue.
decision referred to in point 1 of the forms of order
sought. It considers those articles to be contrary to               The applicant claims that the Court should:
Community law on five grounds:
                                                                    Ð annul the Commission's Decision of 23 December
1. breach of the locking mechanism', whereby                            1997 (VI/51329),
    Community law precludes the introduction by the
    Community of non-temporary restrictions on trade                Ð order the Commission to pay the costs of the
    between the OCT and the Community, as a result of                    proceedings.
    which certain benefits laid down in the OCT decisions
    are (partially) withdrawn;
                                                                    Pleas in law and main arguments adduced in support:
2. breach of the principle of proportionality, since Ð in           In the aforementioned Decision the Commission informed
    so far as is justified in law and in fact Ð temporary           the Hoofdproductschap voor Akkerbouwproducten on the
    measures should be adopted, rather than permanent               basis of the third paragraph of Article 8 of Regulation
    structural restrictions;                                        (EC) No 2553/97 (1) that the applicant's application dated
 ---pagebreak--- 16.5.98               EN                 Official Journal of the European Communities                                  C 151/11
19 December 1997 for an import licence in respect of                Instance on 10 March 1998 by the Council of European
sugar originating in the OCT had to be declared                     Municipalities and Regions, established in Paris,
inadmissible. That Regulation is intended to implement              represented by Daniel M. Tomasevic, of the Brussels Bar,
Article 108b, which was inserted into Decision 91/482/              with an address for service in Luxembourg at the
EEC by Decision 97/803/EC.                                          chambers of Carlos Zeyen, 56-58 Rue Charles Martel.
By way of a plea of illegality, the applicant submits that
Decision 97/803/EC, or at least the Articles thereof which          The applicant claims that the Court of First Instance
restrict the importation of sugar originating in the OCT, is        should:
contrary to Community law. The grounds are identical to
those in Case T-43/98.
Also by way of a plea of illegality, the applicant submits          Ð annul the decision of the Commission of the European
that Regulation (EC) No 2553/97 is contrary to                           Communities contained in debit note 97009405F
Community law:                                                           concerning ECOS Project No 91/00/29003, by which
                                                                         the Commission refuses to pay to the CEMR a balance
                                                                         of ECU 204 446 and claims from the CEMR a balance
1. since Decision 97/803/EC is unlawful, the Regulation                  of ECU 363 336,
    based on it is also invalid;
2. there is no valid legal basis for the requirement for an
    import licence laid down in the Regulation;                     Ð order the Commission to pay the costs.
3. if (secondary) Community legislation does provide a
    legal basis for the requirement for a licence for the           Pleas in law and main arguments adduced in support:
    importation of OCT sugar, Articles 132 and 30 of the
    EC Treaty oppose it;
                                                                    The applicant, a federation of 37 national associations of
4. the licences in question are EUR-1 certificates, which
                                                                    local and regional authorities in 28 European countries,
    the OCT authorities have exclusive competence to
                                                                    contests the decision by which the Commission refuses to
    issue; that competence cannot be restricted by the
                                                                    approve certain expenses in relation to a project
    Commission;
                                                                    undertaken within the framework of the European City
                                                                    Cooperation System (ECOS) Programme. It states that it
5. the supplementary requirements laid down by the                  has been involved since the early 1960s in the
    Commission give rise to additional barriers to trade;           management of that programme, launched by the
                                                                    Commission's Directorate-General XIV, the purpose of
                                                                    which is to promote cooperation between local authorities
6. the Regulation is contrary to the WTO and the other              of the European Union and those of the countries of
    agreements adopted in that context.                             Central and Eastern Europe.
Furthermore, the Regulation only entered into force on
1 January 1998 and, in the applicant's opinion, could not
therefore serve as a basis for the decision.                        As regards the facts of the case, the applicant claims that
                                                                    the ECOS Programme gave rise to a first decision to grant
                                                                    Community aid to it, notified on 10 December 1991, and
(1) OJ L 349, 19.12.1997, p. 26.
                                                                    that the Commission even decided subsequently to grant
                                                                    additional aid. On 19 April 1996 the applicant received a
                                                                    fax from the defendant signalling its approval of the final
                                                                    report.     However,       immediately    following      that
                                                                    communication, it became apparent that the defendant
                                                                    was starting to change its attitude regarding the project,
Action brought on 10 March 1998 by the Council of                   and as a result the contested decision was adopted.
European Municipalities and Regions (CEMR) against the
         Commission of the European Communities
                       (Case T-46/98)
                                                                    The applicant first alleges infringement of the obligation
                        (98/C 151/22)                               to state reasons, in that the defendant did not reply to any
                                                                    of the arguments set out in various letters, in particular
                                                                    the one which followed the meeting of 24 September
               (Language of the case: French)
                                                                    1997. The Commission did not explain why certain
                                                                    supporting documents were not regarded as adequate even
An action against the Commission of the European                    though the Commission itself asked for them to be sent
Communities was brought before the Court of First                   to it.


title: Case T-178/03: Action brought on 21 May 2003 by CeWe Color AG & Co. OHG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
C 184/42              EN                          Official Journal of the European Union                                          2.8.2003
Action brought on 19 May 2003 by Trudell Medical Inter-                   Decision of the Board of        Appeal granted, decision of the
national against the Office for Harmonisation in the                      Appeal:                         Opposition Division annulled,
     Internal Market (Trade Marks and Designs) (OHIM)                                                     registration refused.
                         (Case T-176/03)
                         (2003/C 184/93)                                  Pleas in law:                   — misapplication of Article 8
                                                                                (1)(b), of Regulation 40/
(Language of the case to be determined pursuant to Article 131(2) of                                          94 (1). The applicant alleges
the Rules of Procedure — language in which the application was                                                that there was no risk of
                         submitted: English)                                                                  confusion between the two
                                                                                marks concerned.
                                                                                — misapplication of Articles 74
An action against the Office for Harmonisation in the Internal                                                (1) and 73 and of Regula-
Market (Trade Marks and Designs) (OHIM) was brought before                                                    tion 40/94. The applicant
the Court of First Instance of the European Communities on                                                    alleges that the Board of
19 May 2003 by Trudell Medical International, London,                                                         Appeal examined alleged
Ontario (Canada), represented by Helmut Eichmann, Gerhard                                                     facts and arguments which
Barth, Ulrich Blumenroder, Christa Niklas-Falter, Maximilian                                                  were provided by neither
Kinkeldey, Karsten Brandt, Anja Franke, Ute Stephani, Bernd                                                   party and further based its
Allekotte, Elvira Pfrang, Karin Lochner, Babett Ertle, lawyers.                                               decision on reasons on
                                                                                which the parties concerned
                                                                                have had no opportunity to
Fisons Limited was also a party to the proceedings before the                                                 present their comments.
Board of Appeal.
                                                                          (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
The applicant claims that the Court should:                                   Community trade mark (OJ 11, p. 1).
—     Annul the decision of the First Board of Appeal of the
      Office for Harmonisation in the Internal Market (Trade-
      marks and Designs) in the case R 643/2002-1 of March
      17, 2003;
—     order the costs of the proceedings to be borne by the
      defendant
                                                                          Action brought on 21 May 2003 by CeWe Color AG &
Pleas in law and main arguments                                           Co. OHG against the Office for Harmonisation in the
                                                                                Internal Market (Trade Marks and Designs)
Applicant for Community          Trudell Medical International
trade mark:
                                                                                (Case T-178/03)
                                                                                (2003/C 184/94)
Community       trade   mark     Word mark ‘AEROECLIPSE’ for
sought:                          certain goods in Class 10 (ap-
                                 plication No 001098649 )                                   (Language of the case: German)
Proprietor of mark or sign       Fisons Limited                           An action against the Office for Harmonisation in the Internal
cited in the opposition pro-                                              Market (Trade Marks and Designs) was brought before the
ceedings:                                                                 Court of First Instance of the European Communities on
                                                                          21 May 2003 by CeWe Color AG & Co. OHG, Oldenburg
                                                                          (Germany), represented by Chr. Spintig, lawyer.
Mark or sign cited in op-        National mark ‘ECLIPSE’ in re-
position:                        spect of certain goods in                The applicant claims that the Court should:
                                 Classes 5 and 10.
                                                                          —    annul the decision of the Third Board of Appeal of the
                                                                               defendant of 12 March 2003 in Case R 641/2002-3;
Decision of the Opposition       Opposition rejected.
Division:                                                                 —    order the defendant to pay the costs.
 ---pagebreak--- 2.8.2003              EN                          Official Journal of the European Union                                          C 184/43
Pleas in law and main arguments                                           Decision contested before        Refusal by the examiner of re-
                                                                          the Board of Appeal:             gistration
Community       trade    mark    Word mark ‘DigiFilm’, applica-
sought:                          tion no 2 467 348
                                                                          Decision of the Board of         Dismissal of the applicant's ap-
                                                                          Appeal:                          peal
Goods or services:               Goods and services in Classes 9
                                 (storage media etc.) and 42
                                 (creating photographs etc.)
                                                                          Pleas in law:                    Infringement of Article 7(1)(b)
                                                                                and (c) and Article 7(2) of Reg-
                                                                                ulation No 40/94 (1)
Decision contested before        Refusal by the examiner of re-
the Board of Appeal:             gistration
                                                                          (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                              Community trade mark (OJ 1994 L 11, p. 1).
Decision of the Board of         Dismissal of the applicant's ap-
Appeal:                          peal
Pleas in law:                    Infringement of Article 7(1)(b)          Action brought on 20 May 2003 by Gianmarco Addi-
                                 and (c) and Article 7(2) of Reg-             mando and Others against the European Parliament
                                 ulation No 40/94 (1)
                                                                                (Case T-182/03)
(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
    Community trade mark (OJ 1994 L 11, p. 1).
                                                                                (2003/C 184/96)
                                                                                (Language of the case: French)
Action brought on 19 May 2003 by CeWe Color AG &                          An action against the European Parliament was brought before
Co. OHG against the Office for Harmonisation in the                       the Court of First Instance of the European Communities on
          Internal Market (Trade Marks and Designs)                       20 May 2003 by Gianmarco Addimando, residing in Luxem-
                                                                          bourg, and 32 other officials, represented by G. Bounéou,
                         (Case T-179/03)                                  lawyer, with an address for service in Luxembourg.
                         (2003/C 184/95)
                                                                          The applicants claim that the Court should:
                   (Language of the case: German)
                                                                          —    annul the decision of the competent hierarchical authority
                                                                               changing, with effect from a year not further specified
An action against the Office for Harmonisation in the Internal                 (1993, 1996, 1997, or another year, and for the period
Market (Trade Marks and Designs) was brought before the                        during which the applicants were officials of the
Court of First Instance of the European Communities on                         European Parliament), the procedure for calculating the
19 May 2003 by CeWe Color AG & Co. OHG, Oldenburg                              annual expense of travelling to Greece in respect of the
(Germany), represented by Chr. Spintig, lawyer.                                journey via Brindisi, as taken into consideration for the
                                                                               destination of Athens;
The applicant claims that the Court should:
—     annul the decision of the Third Board of Appeal of the                   or, in the alternative,
      defendant of 12 March 2003 in Case R 638/2002-3;
                                                                          —    annul the decision of the competent hierarchical authority
—     order the defendant to pay the costs.                                    to reimburse, with effect from a year not further specified
                                                                               (1993, 1996, 1997, or another year, and for the period
Pleas in law and main arguments                                                during which the applicants were officials of the
                                                                               European Parliament), the cost of the sea passage from
Community       trade    mark    Word mark ‘DigiFilmMaker’, ap-                Brindisi to various Greek frontier points (Corfu, Igoume-
sought:                          plication no 2 467 017                        nitsa, Patras) on the basis of an ‘aircraft type seat’ ticket;
                                                                          —    annul all the applicants' pay slips implementing the
                                                                               decisions annulment of which is sought;
Goods or services:               Goods and services in Classes 9          —    reimburse to the applicants all the amounts not paid
                                 (storage media etc.) and 42                   following implementation of the decisions annulment of
                                 (creating photographs etc.)                   which is sought, together with legal interest;


title: Case C-386/00: Reference for a preliminary ruling by the Cour d'Appel de Bruxelles (Ninth Chamber) by judgment of 17 October 2000 in the case of Axa Royale Belge v Georges Ochoa and Stratégie Finance Sprl

text:
9.12.2000              EN                    Official Journal of the European Communities                                        C 355/15
4.    Is the importer therefor entitled under the Customs Code,         Does Community law, in particular Council Directive
      and in particular Article 236 thereof, to a refund of the         92/96/EEC of 10 November 1992 (1), preclude national legis-
      duty paid on the buying commission?                               lation which provides that a life-assurance proposal or, in the
                                                                        absence of a proposal, a life-assurance policy must inform a
                                                                        policy-holder that termination, reduction or redemption of an
(1) Council Regulation (EEC) No 2913/92 of 12 October 1992
                                                                        existing life-assurance contract for the purpose of subscribing
    establishing the Community Customs Code (OJ L 302,
    19.10.1992, p. 1).                                                  to a separate life-assurance contract will generally be detrimen-
                                                                        tal to that policy-holder?
Reference for a preliminary ruling by the Juzgado de lo
                                                                        (1) Council Directive 92/96/EEC of 10 November 1992 on the
Social no 1, Pontevedra, by order of that court of                          coordination of laws, regulations and administrative provisions
28 September 2000 in the case of Marı́a Gardenia Abal                       relating to direct life assurance and amending Directives
Pombo against Instituto Nacional de la Seguridad Social                     79/267/EEC and 90/619/EEC (third life assurance Directive) (OJ
        and Tesorerı́a General de la Seguridad Social                       1992 L 360, p. 1).
                         (Case C-382/00)
                        (2000/C 355/29)
Reference has been made to the Court of Justice of the
European Communities by order of the Juzgado de lo Social               Action brought on 23 October 2000 by the European
(Social Court) no 1, Pontevedra, Spain, of 28 September 2000,              Parliament against the Council of the European Union
received at the Court Registry on 18 October 2000, for a
preliminary ruling in the case of Marı́a Gardenia Abal Pombo
against Instituto Nacional de la Seguridad Social (National                                      (Case C-387/00)
Social Security Institute) and Tesorerı́a General de la Seguridad
Social (General Social Security Fund) on the following question:
                                                                                (2000/C 355/31)
Where, in order for a worker (male or female) who is part of a
family in which other family members are working to be
insured under a special social security scheme for agricultural         An action against the Council of the European Union was
workers, a rule imposes a requirement that the income earned            brought before the Court of Justice of the European Communi-
from the activity to which the scheme applies must be the               ties on 23 October 2000 by the European Parliament,
family’s main income, in the sense of being the highest income,         represented by Ricardo Passos, Head of Division, and Antonio
is the rule contrary to the provisions of Council Directive             Caiola, of its Legal Service, acting as Agents, with an address
79/7/EEC of 19 December 1978(1)?                                        for service in Luxembourg at the Post and Registration
                                                                        Department, Bâtiment Tour — Office 017.
(1) OJ L 6, 10.1.1979, p. 24.
                                                                        The European Parliament claims that the Court should:
                                                                        —     Annul, pursuant to Article 230 EC:
Reference for a preliminary ruling by the Cour d’Appel                        —     Council Decision 2000/527/EC of 14 August 2000
de Bruxelles (Ninth Chamber) by judgment of 17 October                              amending Decision 93/731/EC on public access to
2000 in the case of Axa Royale Belge v Georges Ochoa                                Council documents and Council Decision
                   and Stratégie Finance Sprl                                       2000/23/EC on the improvement of information on
                                                                                the Council’s legislative activities and the public
                         (Case C-386/00)                                            register of Council documents(1);
                        (2000/C 355/30)                                       —     Decision 2000/C239/01 of the Secretary-General of
                                                                                the Council/High Representative for the Common
Reference has been made to the Court of Justice of the                              Foreign and Security Policy of 27 July 2000 on
European Communities by judgment of 17 October 2000 by                              measures for the protection of classified information
the Cour d’Appel de Bruxelles (Brussels Court of Appeal)                            applicable to the General Secretariat of the
(Ninth Chamber), which was received at the Court Registry on                        Council(2), and
23 October 2000, for a preliminary ruling in the case of Axa
Royale Belge v Georges Ochoa and Stratégie Finance Sprl on
the following question:                                                 —     Order the defendant to pay the costs.


title: Case C-386/03: Action brought on 12 September 2003 by the Commission of the European Communities against the Federal Republic of Germany

text:
1.11.2003                EN                        Official Journal of the European Union                                          C 264/23
Action brought on 10 September 2003 by the Com-                            The Commission claims that the Court should:
mission of the European Communities against the Italian
                              Republic                                     —     declare that, by failing to adopt all the laws, regulations
                                                                                and administrative provisions necessary to implement
                                                                                Directive 2000/35/EC of the European Parliament and of
                           (Case C-381/03)
                                                                                the Council of 29 June 2000 on combating late payment
                                                                                in commercial transactions (1) or, in any event, by failing
                          (2003/C 264/38)                                        to communicate such provisions to the Commission, the
                                                                                Kingdom of Spain has failed to fulfil its obligations under
                                                                                that directive;
An action against the Italian Republic was brought before the              —     order the Kingdom of Spain to pay the costs.
Court of Justice of the European Communities on 10 Septem-
ber 2003 by the Commission of the European Communities,
represented by K. Banks and K. Simonsson, acting as Agents.
                                                                           Pleas in law and main arguments
The applicant claims that the Court should:
                                                                           The time allowed for transposing the directive expired on
                                                                           8 August 2002.
—     find that, by failing to adopt the laws, regulations
      and administrative provisions necessary to comply with
      Commission Directive 2001/53/EC of 10 July 2001                      (1) OJ L 200 of 8.8.2000, p. 35.
      amending Council Directive 96/98/EC on marine equip-
      ment (1) or, in any event, by failing to communicate the
      same to the Commission, the Italian Republic has failed
      to fulfil its obligations under that directive;
—     order the Italian Republic to pay the costs.
                                                                           Action brought on 12 September 2003 by the Com-
                                                                           mission of the European Communities against the Federal
Pleas in law and main arguments                                                                   Republic of Germany
                                                                                (Case C-386/03)
The time-limit for transposing the directive expired on 17 Feb-
ruary 2002.
                                                                                (2003/C 264/40)
(1) OJ L 204 of 28.7.2001, p. 1.
                                                                           An action against the Federal Republic of Germany was
                                                                           brought before the Court of Justice of the European Communi-
                                                                           ties on 12 September 2003 by the Commission of the
                                                                           European Communities, represented by M. Huttunen and
                                                                           M. Niejahr of its Legal Service, with an address for service in
                                                                           Luxembourg.
Action brought on 12 September 2003 by the Com-
mission of the European Communities against the                            The Commission of the European Communities claims that
                         Kingdom of Spain                                  the Court should:
                           (Case C-384/03)                                 1.    declare that by adopting measures in Paragraphs 8(2) and
                                                                                9(3) of the Verordnung über Bodenabfertigungsdienste
                                                                                auf Flugplätzen (German Regulation concerning
                          (2003/C 264/39)                                        groundhandling services at airports) of 10 December
                                                                                1997 which are not compatible with Articles 16 and 18
                                                                                of Council Directive 96/67/EC of 15 October 1996 on
                                                                                access to the groundhandling market at Community
An action against the Kingdom of Spain was brought before                        airports (1), the Federal Republic of Germany has failed to
the Court of Justice of the European Communities on 12 Sep-                      fulfil its obligations under that directive;
tember 2003 by the Commission of the European Communi-
ties, represented by D. Gregorio Valero Jordana, with an                   2.    order the Federal Republic of Germany to pay the costs
address for service in Luxembourg.                                               of the proceedings.
 ---pagebreak--- C 264/24               EN                         Official Journal of the European Union                                        1.11.2003
Pleas in law and main arguments                                           Communities on 15 September 2003 by the Hellenic Republic,
                                                                          represented by I. Khalkias and E. Svolopoulou, Members of the
                                                                          State Legal Service, with an address for service in Luxembourg
Under Article 18 of Directive 96/67/EC the Member States are              at the Greek Embassy, 27 rue Marie-Adelaïde.
entitled to take measures to protect the rights of workers.
However, such measures must be without prejudice to the
application of that directive, and subject to the other provisions
of Community law. Although Council Directive 2001/23/EC                   The applicant asks the Court to:
of 12 March 2001 on the approximation of the laws of the
Member States relating to the safeguarding of employees’                  —     annul Commission Decision C(2003)2587 excluding
rights in the event of transfers of undertakings, businesses or                 from Community financing certain expenditure incurred
parts of undertakings or businesses (2) does not apply in cases                 by the Member States under the EAGGF — Guarantee
where only a specific share of the market is ‘transferred’ to                   Section, in so far as concerns financial corrections
another undertaking as part of an opening-up of the market,                     chargeable to the Hellenic Republic in the wine, livestock
Paragraph 8(2) of the Verordnung über Bodenabfertigungs-                        premiums and olive oil sectors for the year 1999-2000.
dienste auf Flugplätzen (BADV) authorises the managing body
of an airport to impose a general obligation on new bidders to
take on airport staff, as part of the standard terms for tender
and selection procedures, irrespective of whether there has
been a transfer for the purposes of Directive 2001/23/EC. The             Pleas in law and main arguments
clear effect of Paragraph 8(2) of the BADV is therefore to deter
new undertakings from entering the market and to impede
their competitiveness, thereby reducing the benefits of liberalis-
ation as regards reduction of prices and improvement in the               1.     Infringement of law and of general principles.
quality of services.
                                                                          2. Infringement of the principle of proportionality —
Furthermore, Paragraph 9(3) of the BADV permits the manag-                misuse of discretion.
ing body of an airport to charge higher fees for access to
airport installations in cases where suppliers and selfhandlers
do not take on any staff from the airport operator upon
entering the market. That provision infringes Article 16(3) of            3. Error as to the facts, misassessment of the factual
Directive 96/67/EC which provides that the fee for access to              circumstances, inadequate statement of reasons for the contest-
airport installations is to be determined according to relevant,          ed decision.
objective, transparent and non-discriminatory criteria. The
failure to take on airport staff is not a criterion which meets
any of those requirements. Rather, that provision even enables
                                                                          4. Misinterpretation and misapplication of Article 5(2)(c) of
the airport operator to charge selfhandlers or suppliers of
                                                                          Regulation No 729/70.
services a higher fee for access to airport installations if they
do not take on its staff, and thereby makes it possible for the
airport to discriminate against its direct competitors.
(1) OJ 1996 L 272, p. 36.
(2) OJ 2001 L 82, p. 16.
                                                                          Action brought on 16 September 2003 by the Com-
                                                                          mission of the European Communities against the Italian
                                                                                Republic
Action brought on 15 September 2003 by the Hellenic
Republic against the Commission of the European Com-                                              (Case C-392/03)
                             munities
                                                                                (2003/C 264/42)
                         (Case C-387/03)
                         (2003/C 264/41)
                                                                          An action against the Italian Republic was brought before the
                                                                          Court of Justice of the European Communities on 16 Septem-
An action against the Commission of the European Communi-                 ber 2003 by the Commission of the European Communities,
ties was brought before the Court of Justice of the European              represented by A. Bordes and L. Visaggio, acting as Agents.


title: Case C-353/02: Action brought on 2 October 2002 by the Commission of the European Communities against the Republic of Austria

text:
7.12.2002                EN                   Official Journal of the European Communities                                         C 305/11
zum Arbeitnehmer-Entsendegesetz’ (notes on the Law concern-              The applicant claims that the Court should:
ing the posting of employees abroad), in the still unchanged
version thereof, is provided to employers and forms the basis
of administrative controls by the competent authorities.                 1.    Declare that, by failing to adopt the laws, regulations
                                                                               and administrative provisions necessary to implement
                                                                               Commission Directive 2000/42/EC of 22 June 2000 (1)
Responding in detail to arguments put forward by the German                    amending the Annexes to Council Directives 86/362/
Government, the Commission maintains in particular that:                       EEC, 86/363/EEC and 90/642/EEC on the fixing of
                                                                               maximum levels for pesticide residues in and on fruit and
—     the power conferred on Member States, in accordance                      vegetables and certain products of plant origin, including
      with the second paragraph of Article 3(1) of Directive                   fruit and vegetables respectively, or in failing to notify the
      96/71/EC, to define the concept of ‘minimum pay’                         Commission of their adoption, or in failing to notify the
      does not also include competence to determine the                        Commission of their adoption, the Republic of Austria
      methodology to be followed in carrying out the compara-                  has failed to fulfil its obligations under that directive;
      tive examination;
                                                                         2.    Order the Republic of Austria to pay the costs.
—     although determination of the criterion of ‘accrual’ may
      be relevant for the purposes of defining the concept of
      ‘minimum pay’, the problem of wage elements the accrual
      of which is deferred (e.g. the 13th month’s salary,
      Christmas bonuses) cannot — as provided for in the
      ‘Merkblatt’ — be resolved by simply leaving such matters           Pleas in law and principle arguments
      out of account;
—     control problems arising in connection with such wage              The obligation of the Member States to implement the
      elements are to be resolved bilaterally between the                directives (Article 249(3) EC) includes an obligation to comply
      Member States concerned, and may not lead to a                     with the time-limits laid down in the directives. In the present
      restriction of freedom to provide services;                        case that time-limit expired on 28.02.2001, by which time the
                                                                         Republic of Austria had not adopted the necessary measures.
—     a Member State which has not included supplementary
      holiday pay as part of the minimum pay defined by
      it may not compensate for that ‘lacuna’ by treating
      contributions actually paid to an institution in the               (1 ) OJ 2000 L 158, p. 51.
      Member State where the employer is established which is
      comparable to a German holiday fund as an allowance
      which must be left out of account.
( 1) OJ 1997 L 18, p. 1.
                                                                         Action brought on 2 October 2002 by the Commission
                                                                         of the European Communities against the Republic of
                                                                                Austria
Action brought on 2 October 2002 by the Commission
of the European Communities against the Republic of
                              Austria                                                              (Case C-354/02)
                          (Case C-353/02)
                                                                                (2002/C 305/18)
                          (2002/C 305/17)
An action against the Republic of Austria was brought                    An action against the Republic of Austria was brought
before the Court of Justice of the European Communities                  before the Court of Justice of the European Communities
on 2 October 2002 by the Commission of the European                      on 2 October 2002 by the Commission of the European
Communities, represented by Gerald Braun, of its legal service,          Communities, presented by Gerald Braun, of its legal service,
acting as Agent, with an address for service in Luxembourg at            acting as agent, with an address for service in Luxembourg at
the office of Luis Escobar Guerrero, of the legal service, Wagner        the office of Luis Escobar Guerrero, of the legal service, Wagner
Centre C 254, Luxembourg-Kirchberg.                                      Centre C 254, Luxembourg-Kirchberg.


title: Action brought on 5 July 1995 by Ryanair Limited against the Commission of the European Communities (Case T-140/95)

text:
No C 248/ 14             EN                   Official Journal of the European Communities                                       23 . 9 . 95
                                                        COURT OF FIRST INSTANCE
Action brought on 5 July 1995 by Ryanair Limited against                 The applicant submits that the contested Decision should be
         the Commission of the European Communities                      annulled on the following four grounds :
                          ( Case T-140/95 )
                            ( 95/C 248 /32 )
                                                                         ( 1 ) the Commission infringed an essential procedural
                                                                               requirement in failing to open a procedure under
                                                                               Article 93 ( 2 ) of the EC Treaty prior to taking the
                    (Language of the case: English)                            contested Decision . The Commission itself admitted in
                                                                               the contested Decision that it still had doubts in
                                                                               November/December 1994 as to whether the
An action against the Commission of the European                               requirements of Article 92 ( 3 ) ( c ) were satisfied in the
Communities was brought before the Court of First                              case of the second tranche . Furthermore, the second
Instance of the European Communities on 5 July 1995 by                         tranche of aid itself and the circumstances in which it
Ryanair Limited, represented by Trevor Soames and Alan                         was granted had altered from those considered in 1993 ,
Ryan, Solicitors, with an address for service in Luxembourg                    including most significantly that Aer Lingus had failed
at the Chambers of Ernst Arendt, Arendt & Medernach,                           to implement its restructuring programme . The
8-10 Rue Mathias Hardt .                                                       Commission was therefore required to open the
                                                                               procedure under Article 93 ( 2 ) which it failed to do;
The applicant claims that the Court should :
                                                                         2.    the second tranche of aid could not satisfy the
                                                                               requirements of Article 92 ( 3 ) ( c ) since the conditions
— annul the Commission's decision published on 13 April                        attached to the December 1993 Decision had not been
       1995 in the Official Journal of the European                            satisfied and the Commission could not, in the
       Communities OJ No C 399 , p 1 , dated 31 December                       contested Decision, conclude that the second tranche
       1994 ,                                                                  was nevertheless compatible with the common market
                                                                               without applying a different test from that applied in
                                                                                1993 ;
— order the Commission to pay the applicant's costs .
                                                                         3.    the Commission infringed Article 190 of the EC Treaty
Pleas in law and main arguments adduced in support:                            in failing to provide an adequate statement of the
                                                                               reasons for adopting the contested Decision, failed even
The applicant states that the Commission, by Decision of                       to investigate whether the aid affected trading
21 December 1993 , authorized the Irish Government to                          conditions to an extent contrary to the common
grant £ Irl 175 million in State aid to the Aer Lingus group,                  interest and committed a number of errors of reasoning
provided that the Irish Government observed a number of                        which erroneously led it to conclude that the second
conditions imposed by that Decision . The aid was to be paid                   tranche of aid could be compatible with the common
in three annual tranches, the first of £ Irl 75 million in 1993                market pursuant to Article 92 ( 3 ) ( c ) and that the first
and two tranches of £ Irl 50 million in each 1994 and 1995 .                   tranche still benefited from the exemption accorded by
The aid was linked to a restructuring programme which had                      the December 1993 Decision ;
been drawn up to restore Aer Lingus to viability following
very serious losses which threatened its survival .
                                                                          4.    the Commission committed several manifest errors of
                                                                                assessment in concluding that the second tranche of aid
By the time the second annual tranche of £ Irl 50 million was                   could satisfy the two requirements of Article 92 ( 3 ) ( c )
to be paid in December 1994 , Aer Lingus had failed to                          of the EC Treaty, for, inter alia, the following
achieve the cost reductions specified in its restructuring                      reasons :
programme . Pursuant to Article 1 ( a ) of the Commission's
Decision, the Irish Government was not therefore permitted
to grant the second tranche of aid at the end of 1994 . In                      — the aid did not facilitate the development of certain
order to permit the Irish Government to do so, the                                  economic activities,
Commission adopted a new Decision in December 1994
 ( the contested Decision ) derogating from the December                        — the aid affected trading conditions to an extent
 1993 Decision declaring the second tranche to be                                   contrary to the common interest.
compatible with the common market pursuant to Article 92
 ( 3 ) (c ) of the EC Treaty, despite the fact that Aer Lingus had,
inter alia, failed to implement its restructuring programme
and had failed to achieve the cost reductions required
thereby .


title: Order of the Court (Fifth Chamber) of 3 March 2004 in Case C-395/02 (reference for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen): Transport Service NV v Belgische Staat and Bea Cars BVBA

text:
               17.4.2004

               EN

               Official Journal of the European Union

               C 94/15

      ORDER OF THE COURT

   (Fifth Chamber)
   of 3 March 2004
   in Case C-395/02 (reference for a preliminary ruling from the Rechtbank van eerste aanleg te Antwerpen): Transport Service NV v Belgische Staat and Bea Cars BVBA (1)

   (Article 104(3) of the Rules of Procedure - First and Sixth VAT Directives - Principle of fiscal neutrality - Application of VAT to each production and distribution transaction - Recovery)
   (2004/C 94/30)
   Language of the case: Dutch
   In Case C-395/02; reference to the Court under Article 234 EC from the Rechtbank van eerste aanleg te Antwerpen (Belgium) for a preliminary ruling in the proceedings pending before that court between Transport Service NV and Belgische Staat, Bea Cars BVBA, third party — on the interpretation of the principle of the neutrality of the common system of value added tax — the Court (Fifth Chamber), composed of C. Gulmann, President of the Chamber, S. von Bahr (Rapporteur) and R. Silva de Lapuerta, Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar, has made an order on 3 March 2004, the operative part of which is as follows:
   The principle of the neutrality of the common system of value added tax does not preclude a Member State from recovering value added tax, after the event, from a taxable person which has wrongly invoiced a supply of goods as being exempt from that tax. It is irrelevant, in that regard, whether the value added tax on the later sale of the goods concerned to the end user has been paid to the public purse or not.

      (1)  OJ C 7 of 11.1.2003.


title: Case C-157/03: Action brought on 7 April 2003 by the Commission of the European Communities against the Kingdom of Spain

text:
C 135/16                 EN                       Official Journal of the European Union                                          7.6.2003
Infringement of Article 1 of Regulation (EEC) No 2241/87 and              The applicant claims that the Court, in upholding its appli-
Article 2 of Regulation (EEC) No 2847/93: these provisions                cation, should:
require the Member States to monitor fishing activity by
vessels flying their flag. In that connection, they must carry
out all necessary inspections. From the figures concerning the
number of cases of overfishing, and the extent thereof, it is             1.    Declare that, by imposing, contrary to Directives 68/
plainly apparent that the Belgian authorities failed to take                    360 ( 1), 73/148 (2) and 90/365 ( 3), the obligations to
the control measures necessary to prevent those cases of                        obtain a residence visa for the issue of a residence permit
overfishing.                                                                    to nationals of a non-Member State, who are members of
                                                                                the family of a Community national who has exercised
                                                                                his right to freedom of movement, and, by not granting,
                                                                                contrary to Directive 64/221 ( 4), a residence permit as
Infringement of Article 11(2) of Regulation (EEC) No 2241/87                    soon as possible and, at the latest, within the six months
and Article 21(2) of Regulation (EEC) No 2847/93: the                           following the application for a permit, the Kingdom of
Belgian authorities clearly acted negligently in regard to the                  Spain has failed to fulfil its obligations under the EC
management of the quotas by failing, in several cases, to                       Treaty.
impose at the appropriate time a closing date for fishing.
                                                                          2.    Order the Kingdom of Spain to pay the costs.
Infringement of Article 1(2) of Regulation (EEC) No 2241/87
and 31 of Regulation (EEC) No 2847/93: where fishing vessels
landed fish after the closing date for fishing of the relevant fish
stock or without a quota for that fish stock having been
allocated to Belgium, the masters of those vessels acted in
breach of Community law. The Belgian authorities were
therefore obliged to institute penal or administrative proceed-
ings against those masters or any other persons responsible.              Pleas in law and main arguments
The Belgian Government has provided no evidence that that
has been done.
( 1) OJ 1983 L 24, p. 1.                                                  The formalities which may be required by a Member State of a
( 2) OJ 1992 L 389, p. 1.                                                 Community national exercising his right to freedom of move-
( 3) OJ 1987 L 207, p. 1.                                                 ment or of a member of his family are clearly circumscribed
( 4) OJ 1993 L 261, p. 1.                                                 by the relevant Community legislation with the result that, in
                                                                          the Commission’s view, it is plainly contrary to the letter and
                                                                          spirit of Community law, as laid down in Directives 68/360,
                                                                          73/148 and 90/360, for a Member State to require any other
                                                                          formality in connection with entry or residence.
                                                                          As a consequence of that premiss, the Commission is of the
                                                                          view that the Spanish legislation and practice, in accordance
Action brought on 7 April 2003 by the Commission of                       with the matters established, conflict with those principles of
the European Communities against the Kingdom of Spain                     Community law. Essentially, the residence visa required under
                                                                          Spanish legislation is an instrument enabling the national
                                                                          authorities to examine — prior to entry into Spanish territory
                          (Case C-157/03)                                 — the reasons why a national of a non-Member State wishes
                                                                          to reside for more than three months on national territory.
                          (2003/C 135/23)
                                                                          The national of a non-Member State who is the member of the
                                                                          family of a Community national exercising the right to
An action against the Kingdom of Spain was brought before                 freedom of movement cannot be assimilated to the national of
the Court of Justice of the European Communities on 7 April               a non-Member State without that family tie. On the contrary,
2003 by the Commission of the European Communities,                       that national of a non-Member State is the beneficiary of
represented by Carmel O’Reilly, Legal Adviser, and by Luis                derived rights under Community law and thus enjoys rights of
Escobar Guerrero, of its Legal Service, with an address for               entry into and residence in the territory of another Member
service in Luxembourg.                                                    State at the same time as the Community national.
 ---pagebreak--- 7.6.2003                  EN                          Official Journal of the European Union                                            C 135/17
That national of a non-Member State may not be required to                    The applicant claims that the Court should:
show any independent reason for entering into and residing in
the territory. His right, as a matter of Community law, is                    1.    Declare that, by including in the invitation to bid in
derived from the right enjoyed by the Community national in                         various tender procedures organised by the Instituto
such a way that to impose on that person prior formalities                          Nacional de la Salud para la prestación de servicios de
concerning entry into national territory constitutes not only a                     terapias respiratorias domiciliarias criteria for admission,
restriction on his (derived) right but also a restriction on the                    assessment and selection which require bidders to have,
principal right of the Community national.                                          at the time of submitting the bid, certain installations on
                                                                                Spanish territory, or within a radius of 1 000 kilometres
                                                                                thereof, and, prior to that, public information offices in
The Commission at the same time emphasises that, in con-                            specific locations, or that they should at the time be
formity with the general system of the Community rules on                           providing the same kind of service, the Kingdom of Spain
the issue of residence permits and, with particular regard to                       has failed to fulfil its obligations under Articles 43 and 49
Article 5 of Directive 64/221, the Member State must adopt                          EC;
the decision concerning the residence permit as soon as
possible and in any event not later than six months of the date               2.    Order the Kingdom of Spain to pay the costs.
of the application, it being understood that this maximum
period of six months is to be taken into account only in
cases where examination of the application is interrupted on
grounds of public policy.
                                                                              Pleas in law and main arguments
( 1) Directive 68/360 of 15 October 1968 on the abolition of
     restrictions on movement and residence within the Community              The Commission takes the view that the invitations to bid
     for workers of Member State and their families (OJ, English Special      relating to the tender procedures which are the subject of these
     Edition 1968 (I), p. 485).                                               proceedings are discriminatory inasmuch as they are not
( 2) Directive 73/148/EEC of 21 May 1973 on the abolition of                  justified by any overriding reason relating to the public interest
     restrictions on movement and residence within the Community
     for nationals of Member States with regard to establishment and
                                                                              nor do they observe the principle of proportionality.
     the provision of services (OJ 1973 L 172, p. 14).
( 3) Council Directive 90/365 of 28 June 1990 on the right of
     residence for employees and self-employed persons who have
     ceased their occupational activity (OJ 1990 L 180 p. 28).
( 4) Directive 64/221/EEC of the Council of 25 February 1964 on the
     coordination of special measures concerning the movement and
     residence of foreign nationals which are justified on grounds of
     public policy, public security or public health (OJ English Special
     Edition (1963-1964) I, p. 117).
                                                                              Appeal brought on 7 April 2003 by Jan Pflugradt against
                                                                              the order of the Court of First Instance of the European
                                                                              Communities (Fifth Chamber) of 11 February 2003 in
                                                                                Case T-83/02, Jan Pflugradt v European Central Bank
                                                                                (Case C-159/03 P)
                                                                                (2003/C 135/25)
Action brought on 7 April 2003 by the Commission of
the European Communities against the Kingdom of Spain
                           (Case C-158/03)                                    An appeal against the order of the Court of First Instance of
                                                                              the European Communities (Fifth Chamber) of 11 February
                                                                              2003 in Case T-83/02, Jan Pflugradt v European Central Bank,
                           (2003/C 135/24)                                    was brought before the Court of Justice of the European
                                                                              Communities on 7 April 2003 by Jan Pflugradt, represented
                                                                              by Dr Norbert Pflüger, 44 Kaiserstrasse, D-60329 Frankfurt
                                                                              am Main, with an address for service in Luxembourg.
An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 7 April
2003 by the Commission of the European Communities,                           The appellant claims that the Court, at the same time as it sets
represented by Gregorio Valero Jordana and Klaus Wiedner, of                  aside the order appealed against, should:
its Legal Service, acting as Agents, with an address for service
in Luxembourg.                                                                1.    Declare the action admissible;