title: Judgment of the Court (Grand Chamber) of 22 February 2005 in Case C-141/02 P: Commission of the European Communities v T-Mobile Austria GmbH (Appeal — Article 90(3) of the EC Treaty (now Article 86(3) EC) — Amount of the fees imposed by the Republic of Austria on operators of GSM networks — Partial rejection of the complaint — Admissibility)

text:
               16.4.2005

               EN

               Official Journal of the European Union

               C 93/1

      JUDGMENT OF THE COURT

   (Grand Chamber)
   of 22 February 2005
   in Case C-141/02 P: Commission of the European Communities v T-Mobile Austria GmbH (1)

   (Appeal - Article 90(3) of the EC Treaty (now Article 86(3) EC) - Amount of the fees imposed by the Republic of Austria on operators of GSM networks - Partial rejection of the complaint - Admissibility)
   (2005/C 93/01)
   Language of the case: German
   In Case C-141/02 P, appeal under Article 49 of the EC Statute of the Court of Justice, brought on 15 April 2002, Commission of the European Communities (Agents: W. Mölls and K. Wiedner) supported by: French Republic, (Agents: G. de Bergues and F. Million) the other parties to the proceedings being: T-Mobile Austria GmbH, formerly max-mobil Telekommunikation Service GmbH, established in Vienna (Austria) (avocats: A. Reidlinger, M. Esser-Wellié and T. Lübbig), Kingdom of the Netherlands (H.G. Sevenster) – the Court (Grand Chamber), composed of V. Skouris, President of the Chamber, P. Jann, C.W.A. Timmermans, A. Rosas and A. Borg Barthet, Presidents of Chambers, J.-P. Puissochet (Rapporteur), R. Schintgen, N. Colneric, S. von Bahr, M. Ilešič, J. Malenovský, J. Klučka and U. Lõhmus, Judges; M. Poiares Maduro, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, gave a judgment on 22 February 2005, in which it:

               1.

               Sets aside the judgment of 30 January 2002 of the Court of First Instance of the European Communities in Case T-54/99 max.mobil v Commission;

               2.

               Dismisses the action brought by max.mobil Telekommunikation Service GmbH before the Court of First Instance of the European Communities;

               3.

               Orders T-Mobile Austria GmbH to pay the costs.

      (1)  OJ C 169 of 13.07.2002.


title: Judgment of the Court (First Chamber) of 9 September 2004 in Case C-125/03: Commission of the European Communities against Federal Republic of Germany (Failure by a Member State to fulfil its obligations — Admissibility — Legal interest in bringing proceedings — Directive 92/50/EEC — Public contracts — Services for transport of waste — Procedure without prior publication of a contract notice)

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/10

      JUDGMENT OF THE COURT

   (First Chamber)
   of 9 September 2004
   in Case C-125/03: Commission of the European Communities against Federal Republic of Germany (1)

   (Failure by a Member State to fulfil its obligations - Admissibility - Legal interest in bringing proceedings - Directive 92/50/EEC - Public contracts - Services for transport of waste - Procedure without prior publication of a contract notice)
   (2004/C 262/20)
   Language of the case: German
   In Case C-125/03: Commission of the European Communities (Agents: K. Wiedner) v Federal Republic of Germany (Agent: W.-D. Plessing and A. Tiemann) — action under Article 226 EC for failure to fulfil obligations — the Court (First Chamber), composed of: P. Jann (Rapporteur), President of Chamber, A. Rosas, S. von Bahr, K. Lenaerts and K. Schiemann, Judges; L. Geelhoed, Advocate General; R. Grass, Registrar, has given a judgment on 9 September 2004, in which it:

               1.

               Declares that, by virtue of the fact that contracts for refuse removal concluded by the towns of Lüdinghausen, and Olfen, and the district councils of Nordkirchen, Senden and Ascheberg were awarded in disregard of the advertising rules laid down in Article 8, in conjunction with 15(2) and 16(1) of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, the Federal Republic of Germany has failed to fulfil its obligations under that directive;

               2.

               Orders the Federal Republic of Germany to pay the costs.

      (1)  OJ C 112 of 10.5.2003.


title: Reference for a preliminary ruling from the Centrale Raad van Beroep by order of that court of 9 December 1994 in the case of A. Hallouzi-Choho v. Bestuur van de Sociale Verzekeringsbank (Case C-126/95)

text:
No C 159/ 18            EN                 Official Journal of the European Communities                                     24 . 6 . 95
     of law, or where such appeal may be only in respect of               module' for the assembly of a data-processing machine,
     the legal validity of the decision, or where the appeal              consisting of a housing with inter alia two disk-drives, as
     cannot have suspensory effect') apply equally to                     described in more detail in the grounds of the reference,
     Article 9 ( 2 )?                                                     is to be classified in subheading No 8471 93 59 either
                                                                          directly or pursuant to General Rule 3b as a ' storage
4 . Where a decision has been taken to exclude a                          unit', on the basis of the drives it contains ?
     Community national from the territory of a Member
     State other than his own on public policy or public              2.  If not :
     security grounds and the Community national has left
     that territory without there having been an appeal or                Is it correct to classify a product such as that described
     reference for an advisory opinion to an independent                  above as a 'part' ( of a data-processing machine ) under
     competent authority pursuant to Articles 8 or 9 of                   subheading No 8473 30 90 of the customs tariff
     Directive 64/22 1 /EEC, does that Community national                 provisions ?
     have a right of reference to an independent competent
     authority under Article 9 ( 2 ) if that national
     subsequently returns or seeks to return to the territory of
     the Member State CQncerned, in respect of:
                                                                      Reference for a preliminary ruling from the Centrale Raad
     ( a ) the refusal of an application for a residence permit;      van Beroep by order of that court of 9 December 1994 in the
           or                                                         case of A. Hallouzi-Choho v. Bestuur van de Sociale
                                                                                Verzekeringsbank
     ( b ) the refusal of an application for entry; or
                                                                                ( Case C-126/95 )
     ( c ) a decision ordering expulsion ?                                                       ( 95/C 159/35 )
5 . Do the answers to question 4 vary according to                    Reference has been made to the Court of Justice of the
     whether :                                                        European Communities by an order of the Centrale Raad
                                                                      van Beroep ( Court of last instance in social security matters )
     ( a ) the applicant has entered the territory of the             of 9 December 1994, which was received at the Court
           Member State before asking for a residence                 Registry on 13 April 1995 , for a preliminary ruling in the
           permit;                                                    case of A. Hallouzi-Choho v . Bestuur van de Sociale
                                                                      Verzekeringsbank ( Board of the Social Insurance Bank ) on
     ( b ) the applicant has been expelled from the Member            the following question:
           State before he has asked for a residence permit, or
           has never asked for a residence permit;                    Should Article 41 ( 1 ) of the Cooperation Agreement
                                                                      between the EC and Morocco be interpreted as precluding
     ( c ) the earlier departure was as a result of a decision
           ordering expulsion, or of a threat of detention and
                                                                      imposing the requirement of Netherlands nationality on the
           expulsion and was followed by a decision to
                                                                      spouse — a member of the family within the meaning of
           exclude ?                                                  Article 41 ( 1 ) of the Agreement — of a Moroccan worker in
                                                                      order to obtain entitlement to transitional benefits within
                                                                      the meaning of the Netherlands Algemene Ouderdomswet
(M OJ No L 56 , 4 . 4 . 1964 , p. 850 .
                                                                      ( Law on Old Age )?
Reference for a preliminary ruling from the                           Reference for a preliminary ruling from the Tribunal de
Bundesfinanzhof by order of that court of 16 March                    Commerce, Lyon, by judgment of that court of 2 January
1995 in the case of Vobis Microcomputer AG v.                         1995 , rectified by judgment of 7 February 1995 , in the case
                 Oberfinanzdirektion Miinchen                         of Fontaine SA and Others v. Aqueducs Automobiles
                         ( Case C-121/95 )                                                             Sari
                           ( 95/C 159/34 )                                                     ( Case C-128/95 )
                                                                                ( 95/C 159/36 )
Reference has been made to the Court of Justice of the
European Communities by order of the Seventh Senate of                Reference has been made to the Court of Justice of the
the Bundesfinanzhof ( Federal Finance Court ) of 16 March             European Communities by a judgment of the Tribunal de
1995 , which was received at the Court Registry on 10 April           Commerce ( Commercial Court), Lyon, of 2 January 1995 ,
1995 , for a preliminary ruling in the case of Vobis                  rectified by judgment of 7 February 1995 , which was
Microcomputer AG v . Oberfinanzdirektion Miinchen                     received at the Court Registry on 18 April 1995 , for a
( Principal Revenue Office, Munich ) on the following                 preliminary ruling in the case of 1 . Fontaine SA, 2 . Garage
questions :                                                           Laval SA, 3 . Fahy SA, 4 . Renault Lyon Ouest FLB
                                                                      Automobiles SA, 5 . Société de Diffusion Vallis Auto SA —
1 . Is the Common Customs Tariff (combined                            SDV, 6 . Horizon Sud SA v. Aqueducs Automobiles Sari on
     nomenclature ) to be interpreted as meaning that a 'basic        the following questions:


title: Judgment of the Court (Sixth Chamber) of 16 December 1999 in Case C-382/98 (reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen's Bench Division (Divisional Court)): The Queen v Secretary of State for Social Security, ex parte: John Henry Taylor (Directive 79/7/EEC — Equal treatment for men and women in matters of social security — Grant of a winter fuel payment — Link with pensionable age)

text:
C 63/6                   EN                     Official Journal of the European Communities                                           4.3.2000
    by not transposing those directives with regard to mutual societies    2. The derogation laid down in Article 7(1)(a) of Directive
    governed by the Code de la Mutualité, the French Republic has              79/7/EEC is not applicable to a benefit such as that paid under
    failed to fulfil its obligations under the EC Treaty and under             Regulations 2(5), 2(6) and 3(1) of the Social Fund Winter Fuel
    those directives;                                                          Payment Regulations 1998.
2. Orders the French Republic to pay the costs.
                                                                           (1) OJ C 397 of 19.12.1998.
(1) OJ C 278 of 5.9.1998.
                                                                                JUDGMENT OF THE COURT
                  JUDGMENT OF THE COURT                                                             (Third Chamber)
                          (Sixth Chamber)                                                        of 16 December 1999
                       of 16 December 1999                                 in Case C-26/99: Commission of the European Communi-
                                                                                ties v Grand Duchy of Luxembourg (1)
in Case C-382/98 (reference for a preliminary ruling from
the High Court of Justice of England and Wales, Queen’s                    (Failure by a Member State to fulfil its obligations — Failure
Bench Division (Divisional Court)): The Queen v Sec-                                       to transpose Directive 95/30/EC)
retary of State for Social Security, ex parte: John Henry
                               Taylor (1)
                                                                                (2000/C 63/11)
(Directive 79/7/EEC — Equal treatment for men and women
in matters of social security — Grant of a winter fuel                                         (Language of the case: French)
             payment — Link with pensionable age)
                           (2000/C 63/10)                                  (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                    (Language of the case: English)                        In Case C-26/99: Commission of the European Communities
                                                                           (Agents: P.J. Kuijper and N. Yerrell) v Grand Duchy of
In Case C-382/98: reference to the Court under Article 177 of              Luxembourg (Agent: P. Steinmetz) — application for a declar-
the EC Treaty (now Article 234 EC) from the High Court                     ation that, by failing to adopt and/or notify to the Commission
of Justice of England and Wales, Queen’s Bench Division                    the laws, regulations and administrative provisions necessary
(Divisional Court), United Kingdom, for a preliminary ruling               to comply with Commission Directive 95/30/EC of 30 June
in the proceedings pending before that court between The                   1995 adapting to technical progress Council Directive
Queen and Secretary of State for Social Security, ex parte: John           90/679/EEC on the protection of workers from risks related
Henry Taylor — on the interpretation of Articles 3 and 7(1)(a)             to exposure to biological agents at work (seventh individual
of Council Directive 79/7/EEC of 19 December 1978 on the                   Directive within the meaning of Article 16(1) of Directive
progressive implementation of the principle of equal treatment             89/391/EEC) (OJ 1995 L 155, p. 41), the Grand Duchy of
for men and women in matters of social security (OJ 1979 L 6,              Luxembourg has failed to fulfil its obligations under the
p. 24) — the Court (Sixth Chamber), composed of: R. Schintg-               EC Treaty — the Court (Third Chamber), composed of:
en, President of the Second Chamber, acting as President of                J.C. Moitinho de Almeida (Rapporteur), President of the
the Sixth Chamber, P.J.G. Kapteyn, G. Hirsch, H. Ragnemalm                 Chamber, C. Gulmann and J.-P. Puissochet, Judges; N. Fennelly,
(Rapporteur) and V. Skouris, Judges; J. Mischo, Advocate                   Advocate General; R. Grass, Registrar, has given a judgment
General; D. Louterman-Hubeau, Principal Administrator, for                 on 16 December 1999, in which it:
the Registrar, has given a judgment on 16 December 1999, in
which it has ruled:                                                        1. Declares that, by failing to adopt, within the prescribed period,
                                                                               the laws, regulations and administrative provisions necessary to
1. Article 3(1) of Council Directive 79/7/EEC of 19 December                   comply with Commission Directive 95/30/EC of 30 June 1995
    1978 on the progressive implementation of the principle of equal           adapting to technical progress Council Directive 90/679/EEC
    treatment for men and women in matters of social security must             on the protection of workers from risks related to exposure to
    be interpreted as meaning that a winter fuel payment, such as              biological agents at work (seventh individual Directive within the
    that made under Regulations 2(5), 2(6) and 3(1) of the Social              meaning of Article 16(1) of Directive 89/391/EEC), the Grand
    Fund Winter Fuel Payment Regulations 1998, is covered by that              Duchy of Luxembourg has failed to fulfil its obligations under
    directive.                                                                 Article 2(1) of that Directive;


title: Case C-249/99 P: Appeal brought on 2 July 1999 by Pescados Congelados Jogamar SL against the order delivered on 30 April 1999 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-311/97 between Pescados Congelados Jogamar SL and Commission of the European Communities

text:
C 246/20              EN                   Official Journal of the European Communities                                    28.8.1999
   Article 100a(4) of the EC Treaty (now, after amendment,                systems for cans and non-returnable packaging, along
   Article 95(4) EC) enables a Member State to maintain                   with, if appropriate, labelling and environmental taxes, can
   national rules if the Member State deems this necessary in             secure the same or approximately identical environmental
   order, for example, to protect the environment. When                   advantages as a ban. Lifting the ban would at the same
   adopting the packaging Directive, the Commission did not               time ensure that foreign manufacturers can market their
   receive notification of any national measures which a                  products in, for example, aluminium cans and thereby
   Member State wished to maintain. Within the area harmon-               utilise the environmental advantages associated with trans-
   ised by the Directive, therefore, Member States can no                 port of metal cans over long distances compared with
   longer rely on Article 301EC (ex Article 36) or on interests           transport of other types of packaging.
   requiring mandatory protection as a basis for maintaining
   or introducing more stringent rules.
                                                                      (1) OJ 1994 L 365, p. 10.
   Metal cans made of steel and aluminium satisfy, in the
   Commission’s view, the essential requirements set out in
   Annex II to the Directive. For instance, metal cans satisfy
   the requirements as to manufacturing and composition
   laid down in Annex II(1). Metal cans can also be
   recovered or recycled. It follows from Annex II(3)(a) that
   packaging must be manufactured in such a way as to
   enable ‘the recycling of a certain percentage by weight
   of the materials used’. A very significant portion of the
   material in metal cans can be recycled or reused. The
   Danish rules on packaging and the attitude shown by
   the Danish Government also appear to imply an
   acceptance that metal cans, for instance, satisfy the
   essential requirements. Metal cans are used extensively in
   Denmark, as in other Member States, for food and drink             Appeal brought on 2 July 1999 by Pescados Congelados
   products, such as fruit juice, ice tea and chocolate milk.         Jogamar SL against the order delivered on 30 April 1999
   Denmark also allows a considerable quantity of canned              by the Fifth Chamber of the Court of First Instance of
   beer to be exported to other Member States for purposes            the European Communities in Case T-311/97 between
   of consumption. If it is assumed, as the Danish                    Pescados Congelados Jogamar SL and Commission of the
   Government submits, that metal cans do not satisfy the                                 European Communities
   essential requirements, such packaging will, according to
   Article 9(1) of the Directive, not be usable in Denmark
   or for the export of drinks to other Member States.                                       (Case C-249/99 P)
                                                                                (1999/C 246/41)
— If, as the Danish Government claims, the Directive does
   not at present exhaustively harmonise the rules governing          An appeal against the order delivered on 30 April 1999 by the
   packaging, the legality of the Danish measures must, in the        Fifth Chamber of the Court of First Instance of the European
   Commission’s view, also be assessed on the basis of Article        Communities in Case T-311/97 between Pescados Congelados
   28 EC (ex Article 30). The Danish measures on packaging            Jogamar SL and the Commission of the European Communities
   have the effect that beer and carbonated drinks cannot be          was brought before the Court of Justice of the European
   marketed in the packaging which is lawfully used in the            Communities on 2 July 1999 by Pescados Congelados Jogamar
   Member State in which the drinks are manufactured. The             SL, represented by Manuel de Cristóbal López, of the Madrid
   prohibition on imports of beer and carbonated drinks in            Bar, with an address for service in Luxembourg at Fiduciaire
   metal cans therefore constitutes a barrier to trace contrary       Beaumanoir, 48 Rue de Bragance, L-1255 Luxembourg.
   to Article 28 EC (ex Article 30). The onus is on the Danish
   Government to demonstrate that measures constituting a
   barrier to trace contrary to the Treaty are necessary in
   order to protect the environment and that they comply              The appellant claims that the Court should:
   with the principle of proportionality, that is to say, the
   prohibition is no wider than is necessary to attain a lawful       — quash the order of the Court of First Instance appealed
   objective: the Danish Government has failed to discharge               against;
   that burden of proof. Extensive measures for environmen-
   tal protection, such as a total ban on the use of metal cans
   and non-returnable packaging for beer and carbonated               — declare admissible the action for failure to act and, if it
   drinks, even though the packaging is lawfully used in all              should deem fit, consider the merits of the case or, failing
   other Member States, calls for a reasonably unambiguous                that, refer the case back to the Court of First Instance so
   and certain scientific basis. The life cycle analyses which            that it may adjudicate on the merits of the case; and
   the Danish authorities have had compiled cannot be
   regarded as constituting such a basis. A complete ban on
   the use of certain types of packaging also runs counter to         — in any event, uphold all the claims of the applicant at first
   the principle of proportionality. Use of return and deposit            instance.
 ---pagebreak--- 28.8.1999               EN                   Official Journal of the European Communities                                        C 246/21
Pleas and main arguments                                                1. When determining whether the Applicant, as a British
                                                                           National (Overseas) not entitled (under United Kingdom
                                                                           law) to enter or remain in the United Kingdom, is a ‘person
Breach of Community law (Article 175 of the Treaty estab-                  holding the nationality of a Member State’ and therefore is
lishing the European Community) by misinterpretation thereof               ‘a citizen of the Union’ for the purpose of Article 8 of the
inasmuch as it does not take account of the social context in              EC Treaty:
which it to be applied and infringement of the fundamental
human rights enshrined in Article F(2) of the Treaty on                    (1) What is the effect (if any) as a master of Community
European Union and in general principles of law:                                law of
— right to judicial protection against an excessively formal-                   (a) the United Kingdom’s 1972 Declaration ‘on the
     istic interpretation of the procedural requirements which                      definition of the term “nationals”’ which was
     must be fulfilled prior to the bringing of an action for                       made at the time of Accession to the European
     failure to take action: the totally formalistic interpretation                 Communities and annexed to the Final Act of the
     by the Court of First Instance is incorrect, in view of the                    Accession Conference, and
     conclusions at which it arrives. The Commission knew
     that there was a vessel and crew which had been seized                     (b) the United Kingdom’s 1982 Declaration ‘on the
     under false accusations, since it had sufficient evidence of                   meaning of a UK national’, and
     it in its possession and, moreover, according to findings
     by its own experts, knew such detention to be illegal.                     (c) Declaration No. 2 to the Treaty on European Union
     Nevertheless, it took no action. It is impossible to adhere                    signed on 7 February 1992 that nationality is to be
     to a view so formal that it does not consider the appellant’s                  decided solely by reference to the national law of
     assumption that the Commission is dealing with com-                            the Member State concerned and Member States
     pliance with treaty requirements and taking steps to free                      may declare, for information, who are to be
     the persons illegally arrested to be, in itself, a request for                 considered to be their nationals for Community
     action.                                                                        purposes ?
— misapplication of the right to equal treatment inasmuch as               (2) If and to the extent that the United Kingdom is not
     different situations were treated alike                                    entitled, as a master of Community law, to rely on the
                                                                                Declarations referred to in (1) above, what are the
                                                                                relevant criteria for identifying whether a person has
— breach of the principle of legal certainty which governs the                  nationality of a Member State for the purposes of
     Community legal system and regulates the conduct of the                    Article 8 where domestic law identifies various
     Community institutions                                                     categories of nationality only some of which confer a
                                                                                right to enter and remain in that Member State ?
— right to freedom and safety, honour and moral integrity of
     the crew of the Albor Uno, which is the property of the               (3) In this context, what is the effect of the principle of
     applicant undertaking Pescados Congelados Jogamar SL.                      respect for fundamental human rights under Com-
                                                                                munity law claimed by the Applicant, in particular
                                                                                where the Applicant relies on Article 3(2) of the Fourth
                                                                                Protocol to the European Convention on Human
                                                                                Rights that no one shall be deprived of the right to
                                                                                enter the territory of the State of which he is a national,
                                                                                which has not been ratified by the United Kingdom?
                                                                        2. In the circumstances of the present case does Article 8a(1)
                                                                           of the EC Treaty:
Reference for a preliminary ruling by the High Court of
Justice (England & Wales), Queen’s Bench Division                          (a) Confer rights on a citizen of the Union to enter and
(Crown Office), by order of that court of 14 April 1999,                        remain in the Member State of which he is a national
in the case of The Queen against Secretary of State for                         even where those rights are otherwise denied by
    the Home Department, ex parte: Cheung Chiu Hung                             national law.
                                                                           (b) Confer rights additional to those which existed under
                         (Case C-256/99)                                        the EC Treaty prior to its amendment by the Treaty on
                                                                                European Union.
                         (1999/C 246/42)                                   (c) Give rise to directly effective rights which citizens of
                                                                                the Union may invoke before national courts and
Reference has been made to the Court of Justice of the                          tribunals.
European Communities by an order of the High Court of
Justice (England & Wales), Queen’s Bench Division (Crown                   (d) Apply to situations which are wholly internal to a
Office), of 14 April 1999, which was received at the Court                      single Member State?
Registry on 9 July 1999, for a preliminary ruling in the case of
The Queen against Secretary of State for the Home Depart-
ment, ex parte: Cheung Chiu Hung, on the following questions:


title: Case C-448/07 P: Appeal brought on 27 September 2007 by Ayuntamiento de Madrid and Madrid Calle 30, SA against the order of the Court of First Instance (Fourth Chamber) delivered on 12 July 2007 in Case T-177/06 Ayuntamiento de Madrid and Madrid Calle 30, SA v Commission of the European Communities

text:
               24.11.2007

               EN

               Official Journal of the European Union

               C 283/23

         Appeal brought on 27 September 2007 by Ayuntamiento de Madrid and Madrid Calle 30, SA against the order of the Court of First Instance (Fourth Chamber) delivered on 12 July 2007 in Case T-177/06 Ayuntamiento de Madrid and Madrid Calle 30, SA v Commission of the European Communities
   (Case C-448/07 P)
   (2007/C 283/42)
   Language of the case: Spanish
   Parties

      Appellants: Ayuntamiento de Madrid and Madrid Calle 30, SA (represented by: J.L. Buendía Sierra and R. González-Gallarza Granizo, abogados)

      Other party to the proceedings: Commission of the European Communities
   Form of order sought

               —

               annul the order of the Court of First Instance (Fourth Chamber) of 12 July 2007 in Case T-177/06 Ayuntamiento de Madrid and Madrid Calle 30, SA v Commission of the European Communities;

               —

               refer the case back to the Court of First Instance for judgment.

         Pleas in law and main arguments
   In the order under appeal, the Court of First Instance held inadmissible the action brought by Ayuntamiento de Madrid and Madrid Calle 30, SA, which sought the annulment of the classification by the Commission (Eurostat) of Madrid Calle 30 in the ‘public administration’ sector, in accordance with the ‘European System of Accounts’ (ESA 95) provided for in Annex A to Council Regulation (EC) No 2223/96 (1) of 25 June 1996. That classification was based on accounts published by the Commission (Eurostat) on 24 April 2006, using the data of 2005 on the government deficit and government debt for the application of the Protocol on the excessive deficit procedure annexed to the EC Treaty.
   The appellants consider that the Court of First Instance erred in holding that the news release 48/2006 did not constitute an implied decision of the Commission (Eurostat) with binding legal effects and consequently was not a legal act against which an action could be brought.
   In support of their appeal, the appellants emphasise the central role of the Commission (Eurostat) in the final approval of the figures of government deficit and debt of the Member States, based not only on the relevant legislation (Article 104 EC, the Protocol on the excessive deficit procedure and Council Regulation (EC) No 3605/93 (2) of 22 November 1993 on the application of the Protocol on the excessive deficit procedure annexed to the Treaty establishing the European Community, as amended by Regulation (EC) No 2103/2005 (3)) but also on the institutional architecture of the regulatory system.
   The appellants consider that in the order under appeal the Court of First Instance came to an erroneous conclusion by not accepting that the Commission (Eurostat) is obliged to check whether the government accounts comply with the accounting rules of ESA 95 before publishing the data on the government deficit and debt of the Member States. The appellants add that the absence of reservations and/or amendments on the part of the Commission (Eurostat), within the relevant period laid down in Regulation (EC) No 3605/93, as amended, implies that the act which has been approved without reservations and/or amendments becomes final and is therefore a legal act against which an action can be brought. The appellants further claim that the act in question entails legal effects with significant consequences in various areas, such as for example, under the excessive deficit procedure or the Structural Funds procedure.

      (1)  Council Regulation (EC) No 2223/96 of 25 June 1996 on the European system of national and regional accounts in the Community (OJ L 310, p. 1).

      (2)  OJ L 332, p. 7.

      (3)  Council Regulation (EC) No 2103/2005 of 12 December 2005 amending Regulation (EC) No 3605/93 as regards the quality of statistical data in the context of the excessive deficit procedure (OJ L 337, p. 1).


23.11.2002             EN                    Official Journal of the European Communities                                   C 289/19
Under the first paragraph of Article 10 EC, Member States are                   Removal from the register of Case C-335/01 ( 1)
to take all appropriate measures, whether general or particular,
to ensure fulfilment of the obligations arising out of the Treaty
or resulting from action taken by the institutions of the                                        (2002/C 289/35)
Community.
It is not disputed by the Hellenic Republic that it must adopt
                                                                        By order of 23 September 2002 the President of the Court of
measures to comply with the abovementioned directive.
                                                                        Justice of the European Communities ordered the removal
                                                                        from the register of Case C-335/01: Commission of the
                                                                        European Communities v French Republic.
The Commission records that until now the Hellenic Republic
has not adopted the appropriate measures for the full incorpor-
ation of the directive into Greek law.
                                                                        (1 ) OJ C 317 of 10.11.2001.
( 1) OJ L 127 of 9.5.2001, p. 42.
                                                                                Removal from the register of Case C-43/02 (1)
      Removal from the register of Case C-141/01 P        (1)
                                                                                (2002/C 289/36)
                         (2002/C 289/33)
                                                                        By order of 29 August 2002 the President of the Court of
By order of 24 July 2002 the President of the Court of Justice
                                                                        Justice of the European Communities ordered the removal
of the European Communities ordered the removal from                    from the register of Case C-43/02 (Referral for a preliminary
the register of Case C-141/01 P: Confederazione Generale                ruling by the Landgericht Stuttgart): Landesbausparkasse
dell’Industria Italiana (Confindustria) and Others v Com-
                                                                        Baden-Württemberg v Elisabeth Huttenlocher.
mission of the European Communities.
( 1) OJ C 186 of 30.6.2001.                                             (1 ) OJ C 109 of 4.5.2002.
        Removal from the register of Case C-295/01 ( 1)
                                                                                Removal from the register of Case C-59/02 (1)
                         (2002/C 289/34)
                                                                                (2002/C 289/37)
By order of 24 July 2002 the President of the Court of Justice
of the European Communities ordered the removal from the
                                                                        By order of 12 July 2002 the President of the Court of Justice
register of Case C-295/01 (Referral for a preliminary ruling by         of the European Communities ordered the removal from
the Giudice di pace di Casale Monferrato): Fontaneto Industria          the register of Case C-59/02: Commission of the European
Alimentare Srl v ASL No 21 — Dipartimento di Prevenzione                Communities v Hellenic Republic.
Servizio Igiene Alimenti e Nutrizione.
( 1) OJ C 289 of 13.10.2001.                                            (1 ) OJ C 97 of 20.4.2002.


title: Reference for a preliminary ruling by the Bundesvergabeamt by order of that body of 27 January 1998 in the case of Bietergemeinschaft: 1. Metalmeccanica Fracasso SpA, 2. Leitschutz Handels- und Montage GmbH against Amt der Salzburger Landesregierung (Case C-27/98)

text:
28.3.98               EN                Official Journal of the European Communities                                    C 94/13
    receiving such allowance) contrary to Articles 48(2)           Directeur des Services Fiscaux de la Moselle (Case C-28/
    and 51 of the EC Treaty?                                       98) and Jean Hirtsmann v. Directeur des Services Fiscaux
                                                                   de la Moselle (Case C-29/98) on the following question:
                                                                   Whether, having regard (Case C-28/98) to the date of
                                                                   approval of the plaintiff's Chevrolet vehicle of 33 CV
                                                                   fiscal power rating, registration number 6707 ZK 57, and
Reference for a preliminary ruling by the Bundesvergabe-           (Case C-29/98) to the date of approval of the plaintiff's
amt by order of that body of 27 January 1998 in the case           Jeep vehicle of 23 CV fiscal power rating, registration
of Bietergemeinschaft: 1. Metalmeccanica Fracasso SpA,             number 1438 XX 57, and having regard to the tax
2. Leitschutz Handels- und Montage GmbH against Amt                diagrams and figures submitted by the plaintiff and the
               der Salzburger Landesregierung                      observations submitted by the authorities, the system of
                        (Case C-27/98)                             taxation applied corresponds to objective criteria free
                                                                   from any discriminatory effect and not falling within the
                         (98/C 94/25)                              scope of Article 95 of the Treaty.
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesvergabeamt
(Federal Procurement Office) of 27 January 1998, received
at the Court Registry on 2 February 1998, for a
preliminary ruling in the case of Bietergemeinschaft
                                                                   Reference for a preliminary ruling from the 35th Civil
(contractor grouping): 1. Metalmeccanica Fracasso SpA,
                                                                   Chamber of the Landgericht Berlin by order of that court
2. Leitschutz Handels- und Montage GmbH against Amt
                                                                   of 4 November 1997 in the case of VR-Leasing GmbH
der Salzburger Landesregierung (Government Office of
                                                                                against Margit Bertram
the Land Salzburg) on the following question:
                                                                                (Case C-30/98)
Is Article 18 of Directive 93/37/EEC ( ), according to
                                           1                                                (98/C 94/27)
which contracts are to be awarded on the basis of the
criteria laid down in Chapter 3 of Title IV, taking into
account Article 19, after the suitability of the contractors       Reference has been made to the Court of Justice of the
not excluded under Article 24 has been checked by                  European Communities by order of the 35th Civil
contracting authorities in accordance with the criteria of         Chamber of the Landgericht Berlin (Berlin Regional
economic and financial standing and of technical                   Court) of 4 November 1997, received at the Court
knowledge or ability referred to in Articles 26 to 29, to be       Registry on 5 February 1998, for a preliminary ruling in
interpreted as requiring contracting authorities to accept a       the case of VR-Leasing GmbH against Margit Bertram on
tender even if it is the only tender still remaining in the        the following question:
tendering procedure? Is Article 18 sufficiently specific and
precise for it to be relied on by individuals in proceedings
under national law and, as part of Community law, to be            Do Articles 1 and 2 of Council Directive 85/577/EEC of
used to oppose provisions of national law?                         20 December 1985 (1), on protection of the consumer in
                                                                   respect of contracts negotiated away from business
(1) OJ L 199, 9.8.1993, p. 54.                                     premises, cover a husband who, acting as a negotiator on
                                                                   behalf of a leasing company, causes his wife to sign a
                                                                   declaration of suretyship in their private residence?
                                                                   (1) OJ L 372, 31.12.1995, p. 31.
References for a preliminary ruling from the Tribunal de
Grande Instance de Thionville by judgments of that court
of 21 March 1997 in the cases of Marc Charreire v. Direc-
teur des Services Fiscaux de la Moselle and Jean
 Hirtsmann v. Directeur des Services Fiscaux de la Moselle
                                                                   Reference for a preliminary ruling from the Finanzgericht
                (Cases C-28/98 and C-29/98)                        München (Finance Court, Munich) by order of that court
                         (98/C 94/26)                              of 22 January 1998 in the case of Peter Luksch v. Haupt-
                                                                        zollamt Weiden (Principal customs office, Weiden)
                                                                                (Case C-31/98)
Reference has been made to the Court of Justice of the
European Communities by judgments of the Civil                                              (98/C 94/28)
Chamber of the Tribunal de Grande Instance de Thionville
(Regional Court, Thionville) of 21 March 1997, which
were received at the Court Registry on 3 February 1998,            Reference has been made to the Court of Justice of the
for preliminary rulings in the cases of Marc Charreire v.          European Communities by an order of the Finanzgericht


title: Reference for a preliminary ruling by the Bundesverwaltungsgericht by order of that court of 25 September 1996 in the case of Aher-Waggon GmbH against the Federal Republic of Germany (Case C-389/96)

text:
No C 26 /6                EN                  Official Journal of the European Communities                                      25 .  . 97
       before the entry into force of the Regulation to the                   on the approximation of the laws of the Member
       common organization of the market and are not                           States relating to the labelling, presentation and
       caused by a lack of care on the part of the traders                    advertising of foodstuffs for sale to the ultimate
       concerned.                                                             consumer (!), if he puts foodstuffs on the market in
                                                                              the Federal Republic of Germany which are labelled in
2 . The EC Treaty does not authorize national courts to                       Italian, French or English ?
       order provisional measures in proceedings for the
      grant of interim relief until such time as the                     2 . If not, does the trader satisfy the requirements of
       Commission has adopted an act with legal effect to                     Article 14 of Council Directive 79/ 112/EEC at least if
      deal, in accordance with Article 30 of Regulation                       he places a supplementary sign in his shop at the
       (EEC) No 404/93 , with cases of hardship affecting                     location of the goods in question, containing the
      traders .
                                                                              prescribed particulars in German ?
(!) OJ No C 119 , 13 . 5 . 1995 .
                                                                         (') OJ No L 33 , 8 . 2 . 1979 , p . 1 .
( 2 ) OJ No L 47, 25 . 2 . 1993 , p . 1 .
Reference for a preliminary ruling by the Tribunal du                    Reference for a preliminary ruling from the Svea Hovratt
Travail, Charleroi, by judgment of that court of                         by order of that court of 22 November 1996 in the case of
7 November 1996 in the case of Louisette Cordelle                                      Anders Sjoberg v. Public Prosecutor
                against Office National des Pensions                                               ( Case C-387/96)
                           ( Case C-366/96 )
                                                                                ( 97/C 26/11 )
                              ( 97/C 26/09 )
                                                                         Reference has been made to the Court of Justice of the
Reference has been made to the Court of Justice of the                   European Communities by an order of the Svea Hovratt
European Communities by judgment of the Tribunal du                      ( Svea Court of Appeal ) of 22 November 1996, which was
Travail ( Labour Court), Charleroi, of 7 November 1996,                  received at the Court Registry on 27 November 1996, for
received at the Court Registry on 21 November 1996, for                  a preliminary ruling in the case of Anders Sjoberg v.
a preliminary ruling in the case of Louisette Cordelle                   Public Prosecutor on the following questions:
against Office National des Pensions on the following
question:
                                                                         1 . Is the derogation contained in Article 13 ( 1 ) ( b ) of
Having regard to the benefits paid in accordance with                         Council Regulation ( EEC ) No 3820/85 of 20 December
French law by the Caisse regionale d'assurance maladie                        1985 on the harmonization of certain social legislation
Nord Picardie and to the retirement pension payable                           relating to road transport ( ! ) applicable to the services
under Belgian law, is the rule preventing the overlapping                     run by Stockholm Lan Council using SL Buss AB ?
of benefits laid down by Article 52 of the Royal Decree of
21 December 1967 applicable in the light of the                          2 . According to Article 14 ( 5 ), drivers on services
Community rules ?                                                             mentioned in paragraph ( 1 ) must carry an extract
                                                                              from the duty roster and a copy of the service
                                                                              timetable. Is it sufficient for the extract from the duty
                                                                              roster to cover only the journeys made on the day in
                                                                              question ?
Reference for a preliminary ruling from the Amtsgericht                  (!) OJ No L 370, 31 . 12. 1985 , p. 1 .
Aachen by order of that court of 6 November 1996 in the
administrative penalty proceedings against Hermann Josef
                                 Goerres
                           ( Case C-385 /96 )
                              ( 97/C 26/ 10 )
                                                                         Reference for a preliminary ruling by the Bundesverwal
Reference has been made to the Court of Justice of the                   tungsgericht by order of that court of 25 September 1996
European Communities by an order of the Amtsgericht                      in the case of Aher-Waggon GmbH against the Federal
Aachen ( Aachen Local Court) of 6 November 1996 ,                                               Republic of Germany
which was received at the Court Registry on 28 November                                            ( Case C-389/96 )
1996, for a preliminary ruling in the administrative                                                  ( 97/C 26/ 12 )
penalty proceedings against Hermann Josef Goerres on the
following questions:
                                                                         Reference has been made to the Court of Justice of
1.    Does a trader act in accordance with Article 14 of                 the European Communities by order of the Bundes
      Council Directive 79/112/EEC of 18 December 1978                   verwaltungsgericht ( Federal Administrative Court) of
 ---pagebreak--- 25 . 1 . 97         1 EN |               Official Journal of the European Communities                                 No C 26 / 7
25 September 1996 , received at the Court Registry on               compliance with stricter noise limits, with the result that
29 November 1996, for a preliminary ruling in the case of           an aircraft admitted to traffic in another Member State
Aher-Waggon GmbH v. Federal Republic of Germany on                  before the said Directive was adopted may no longer be
the following question:                                             granted admission to traffic in Germany because it
                                                                    exceeds German noise limits, even though aircraft of the
Is it compatible with the principles of free movement of            same construction which had already obtained German
goods pursuant to Article 30 of the EC Treaty for German            authorization beforehand may retain it without
law to rely on the noise-emission limits for aircraft               restrictions ?
pursuant to Directive 80/5 1 /EEC ( 1 ) as amended by
Directive 83/206/EEC (2 ), which are laid down as
minimum requirements, in making admission of aircraft to            (') OJN0LI8 , 24 . 1 . 1980, p. 26 .
traffic in the Federal Republic of Germany conditional on           ( 2 ) OJ No L 117, 4 . 5 . 1983 , p . 15 .
                                                   COURT OF FIRST INSTANCE
                ORDER OF THE PRESIDENT                              Action brought on 14 November 1996 by Mediocurso,
            OF THE COURT OF FIRST INSTANCE                          Estabelecimento de Ensino Particular Limitada, against the
                     of 29 November 1996                                       Commission of the European Communities
                                                                                Case T-180/96
in Case T- 179/96 R: J. Antonissen v. Council and
           Commission of the European Communities                                                ( 97/C 26/14 )
(Milk quotas — Damage caused by the Community —
Application for interim relief — Application for damages                           (Language of the case: Portuguese)
    against the Community — Provisional nature — None)
                          ( 97/C 26/13 )                            An action against the Commission of the European
                                                                    Communities was brought before the Court of First
                                                                    Instance of the European Communities on 14 November
                 (Language of the case: Dutch)                       1996 by Mediocurso, Estabelecimento de Ensino
                                                                    Particular Limitada, whose registered office is at Rua dos
In Case T-179/96 R, J. Antonissen, residing at Giethem,             Ferreiros a Estrela, n° 9, 2° Dto, Lisbon, represented by
the Netherlands, represented by E. H. Pijnacker Hordijk,            Carlos Botelho Moniz and Paulo Moura Pinheiro, of the
of the Amsterdam Bar, with an address for service in                Lisbon Bar, with an address for service in Luxembourg at
Luxembourg at the Chambers of L. Frieden, 62 avenue                 the Chambers of Aloyse May, 31 , Grand'-Rue, L-1661 ,
Guillaume, against the Council of the European Union                Luxembourg.
(Agents: G. Houttuin, A.-M. Colaert and J. -P. Hix) and
the Commission of the European Communities (Agent: T.               The applicant claims that the Court should :
van Rijn) — application for an order that the European
Community pay, by way of advance, the sum of
Fl 258 565,38 , with interest thereon at the rate of 5%             — annul Commission Decision C(96 ) 1185 of 14 August
calculated from 1 September 1996, together with the sum                    1996 reducing the amount of Decision C(89 ) 0570 of
of Fl 20 000 per annum from the date on which the                          22 March 1989 concerning the granting of assistance
 application for interim relief was lodged until the date on               from the European Social Fund towards the financing
which the Court gives judgment in the main case — the                      in Portugal ( Mediocurso ), within the Community
 President of the Court of First Instance made an order on                 Support Framework, of Objective 1 ,
 29 November 1996, the operative part of which is as
 follows :
                                                                     — order the defendant to pay all the costs of the
                                                                           proceedings .
 1 . The application for interim measures is dismissed.
                                                                     Pleas in law and main arguments adduced in support:
 2.   Costs are reserved.
                                                                     The applicant maintains that the contested act is unlawful
                                                                      and should be annulled on the following grounds :


title: Judgment of the Court of First Instance of 17 September 2003 in Case T-137/01: Stadtsportverband Neuss eV v Commission of the European Communities (Action for annulment — Eurathlon Programme — Community financial assistance — Partial repayment — Obligation to state reasons — Method of calculation — Limitation period — Ineligible expenditure)

text:
15.11.2003             EN                        Official Journal of the European Union                                         C 275/43
                                                      COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                              Commonfood Handelsgesellschaft für Agrar-Produkte mbH,
                                                                         established in Langen (Germany), represented by K. Landry
                     of 17 September 2003                                and L. Harings, lawyers, v Commission of the European
                                                                         Communities (Agents: J.-C. Schieferer, R. Tricot, X. Lewis and
in Case T-137/01: Stadtsportverband Neuss eV v Com-                      M. Núñez-Müller): Application for, first, partial annulment of
          mission of the European Communities (1)                        Commission Decision C (2001) 2533 of 14 August 2001
                                                                         (REC 4/00), finding it appropriate to effect post-clearance
(Action for annulment — Eurathlon Programme — Com-                       recovery of import duties not charged to Peter Biegi Nahrungs-
munity financial assistance — Partial repayment — Obli-                  mittel GmbH in respect of the importation of poultry meat
gation to state reasons — Method of calculation — Limi-                  from Thailand during the period from 13 to 18 July 1995 and
            tation period — Ineligible expenditure)                      from 4 to 22 September 1995 (Case T-309/01), and, second,
                                                                         annulment of Commission Decision C (2002) 857 of 5 March
                         (2003/C 275/69)                                 2002 (REC 4/01), finding it appropriate to effect post-clearance
                                                                         recovery of import duties not charged to Commonfood
                  (Language of the case: German)                         Handelsgesellschaft für Agrar-Produkte mbH in respect of the
                                                                         importation of poultry meat from Thailand on 24 July 1995
                                                                         (Case T-239/02), the Court of First Instance (Fourth Chamber),
In Case T-137/01, Stadtsportverband Neuss eV, established in             composed of: V. Tiili, President, P. Mengozzi and M. Vilaras,
Neuss (Germany), represented by H.G. Hüsch and S. Schnelle,              Judges; I. Natsinas, Administrator, for the Registrar, has given
lawyers, v Commission of the European Communities (Agent:                a judgment on 17 September 2003, in which it:
J. Sack): Application for annulment of the Commission’s
decision of 9 April 2001 ordering partial repayment of                   1.    Dismisses the applications.
financial assistance granted to the applicant under the Eur-
athlon programme, the Court of First Instance (Fourth Cham-
                                                                         2.    Orders the applicants to pay the costs.
ber), composed of: V. Tiili, President, P. Mengozzi and
M. Vilaras, Judges; D. Christensen, Administrator, for the
Registrar, has given a judgment on 17 September 2003, in                 (1) OJ C 56 of 2.3.2002 and C 247 of 12.10.2002.
which it:
1.    Dismisses the application.
2.    Orders the applicant to pay the costs.
(1) OJ C 245 of 1.9.2001.
                                                                             JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 18 September 2003
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                         in Case T-321/01: Internationaler Hilfsfonds eV v Com-
                                                                                mission of the European Communities (1)
                     of 17 September 2003
in Joined Cases T-309/01 and T-239/02: Peter Biegi Nah-                  (Development cooperation — Community co-financing of
rungsmittel GmbH and Commonfood Handelsgesellschaft                      projects by NGOs — Ineligibility of an NGO — Rejection
für Agrar-Produkte mbH v Commission of the European                                        of co-financing applications)
                         Communities (1)
                                                                                (2003/C 275/71)
(Subsequent accounting for import duties — Conditions
— Article 220(2)(b) of Regulation (EC) No 2193/92 —
Detectable error — Duty of care — Regulation (EC) No                                        (Language of the case: French)
 774/94 — Combined nomenclature — WTO tariff quotas)
                         (2003/C 275/70)
                                                                         In Case T-321/01, Internationaler Hilfsfonds eV, established in
                  (Language of the case: German)                         Rosbach (Germany), represented by H. Kaltenecker, lawyer, v
                                                                         Commission of the European Communities (Agents: M.-J.
                                                                         Jonczy and S. Fries): Application for annulment of the
In Joined Cases T-309/01 and T-239/02, Peter Biegi Nahrungs-             Commission’s decision of 16 October 2001 refusing appli-
mittel GmbH, established in Frankfurt am Main (Germany),                 cations for the co-financing of two projects submitted by the


title: Judgment of the Court (Fifth Chamber) of 29 April 2004 in Case C-181/02 P: Commission of the European Communities v Kvaerner Warnow Werft GmbH (Appeal — State aid — Shipbuilding — Commission decisions authorising payment of aid — Condition — Compliance with a ‘capacity restriction’ — Definition)

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 118/23

      JUDGMENT OF THE COURT

   (Fifth Chamber)
   of 29 April 2004
   in Case C-181/02 P: Commission of the European Communities v Kvaerner Warnow Werft GmbH (1)

   (Appeal - State aid - Shipbuilding - Commission decisions authorising payment of aid - Condition - Compliance with a ‘capacity restriction’ - Definition)
   (2004/C 118/40)
   Language of the case: German
   In Case C-181/02 P: Commission of the European Communities (Agents: K.-D. Borchardt and V. Kreuschitz), with an address for service in Luxembourg – appeal against the judgment of the Court of First Instance of the European Communities (Fourth Chamber, Extended Composition) of 28 February 2002 in Joined Cases T-227/99 and T-134/00 Kvaerner Warnow Werft v Commission [2002] ECR II-1205, seeking to have that judgment set aside, the other party to the proceedings being: Kvaerner Warnow Werft GmbH, established in Rostock-Warnemünde (Germany), (avocat: M. Schütte ) with an address for service in Luxembourg, – the Court (Fifth Chamber), composed of C.W.A. Timmermans, acting as President of the Fifth Chamber, A. La Pergola (Rapporteur) and S. von Bahr, Judges; P. Léger, Advocate General; M. Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 29 April 2004, in which it:

               1.

               Dismisses the appeal;

               2.

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

      (1)  OJ C 169, 13.7.2002.


title: Case C-104/03: Reference for a preliminary ruling by the Gerechtshof te Amsterdam by order of that Court of 12 December 2002 in the case of St Paul Dairy Industries NV against Unibel Exser BVBA

text:
C 101/30                  EN                         Official Journal of the European Union                                         26.4.2003
       Member State which, in response to the infringement by                      particular, to provide an opportunity for persons involved
       companies of those obligations concerning disclosure                        in an action subsequently brought before the civil courts
       and the provision of accurate information imposed on                        — those considering bringing such an action, those who
       them in order to safeguard ‘the interests of both members                   anticipate that the action will be brought against them,
       and third parties’, provides for prosecution machinery and                  or third parties otherwise concerned by such an action
       a sanctionative system which are markedly differentiated,                   — to obtain advance clarification of the facts (with which
       whereby the possibility of the imposition of a punishment                   they are perhaps not entirely familiar), so as to enable
       upon complaint being made, together with more serious                       them better to assess their position, particularly also with
       and effective penalties, is reserved solely for infringements               regard to the issue of identification of the party against
       occasioning loss to members and creditors?                                  whom proceedings must be instituted?
                                                                             —     If so, can the provision in that case constitute a measure
( 1) First Council Directive 68/151/EEC of 9 March 1968 on co-                     within the meaning of Article 24 of the Brussels Conven-
     ordination of safeguards which, for the protection of the interests           tion?
     of members and others, are required by Member States of
     companies within the meaning of the second paragraph of
     Article 58 of the Treaty, with a view to making such safeguards
     equivalent throughout the Community (English special edition...:
     Series-I I Chapter 1968(I), p. 41).
( 2) Fourth Council Directive 78/660/EEC of 25 July 1978 based on
     Article 54 (3) (g) of the Treaty on the annual accounts of certain
     types of companies (OJ L 222 of 14.8.1978, p. 11).
( 3) Seventh Council Directive 83/349/EEC of 13 June 1983 based on
     the Article 54 (3) (g) of the Treaty on consolidated accounts (OJ
     L 193 of 18.7.1983, p. 1).                                                      Removal from the register of Case C-435/01 ( 1)
( 4) Council Directive 90/605/EEC of 8 November 1990 amending
     Directive 78/660/EEC on annual accounts and Directive 83/349/
     EEC on consolidated accounts as regards the scope of those                                       (2003/C 101/51)
     Directives (OJ L 317 of 16.11.1990, p. 60).
                                                                             By order of 6 January 2003 the President of the Court of
                                                                             Justice of the European Communities ordered the removal
                                                                             from the register of Case C-435/01: Commission of the
                                                                             European Communities v Kingdom of Belgium.
Reference for a preliminary ruling by the Gerechtshof te
Amsterdam by order of that Court of 12 December 2002                         (1 ) OJ C 17 of 19.1.2002.
in the case of St Paul Dairy Industries NV against Unibel
                              Exser BVBA
                            (Case C-104/03)
                            (2003/C 101/50)
                                                                                Removal from the register of Case C-324/02 ( 1)
Reference has been made to the Court of Justice of the                                                (2003/C 101/52)
European Communities by order of the Gerechtshof te Amster-
dam (Regional Court of Appeal, Amsterdam) of 12 December
2002, received at the Court Registry on 6 March 2003, for a
preliminary ruling in the case of St Paul Dairy Industries NV
against Unibel Exser BVBA on the following questions:                        By order of 10 February 2003 the President of the Court of
                                                                             Justice of the European Communities ordered the removal
—      Does the provision in Article 186 et seq. of the Nether-              from the register of Case C-324/02: Commission of the
       lands Code of Civil Procedure concerning the ‘preliminary             European Communities v Kingdom of Spain.
       hearing of witnesses prior to the bringing of proceedings’
       come within the scope of the Brussels Convention in light
       of the fact also that, as provided for in that legislation, it        (1 ) OJ C 274 of 9.11.2002.
       seeks not only to enable material evidence to be taken
       from witnesses shortly after the facts in dispute and to
       prevent evidence from being lost but also, and in


title: Action brought on 18 January 1995 by the Commission of the European Communities against the Kingdom of Spain (Case C-16/95)

text:
4 . 3 . 95            I EN                  Official Journal of the European Communities                                No C 54/13
2. Must Article 12 (c ) and Article 3a of Regulation (EEC )            fiscal administration, since requests for refunds are usually
     No 857/84 be interpreted as requiring resumption of               revised and transmitted with, according to the complaints
     production by the actual person concerned ?                       received, delays of up to 12 months.
3 . Does Article 40 ( 3 ) of the EEC Treaty preclude a                 The Commission considers that the Spanish authorities'
     decision by a Member State, pursuant to Regulation                lack of cooperation, in not responding to its written
     No 857/84 of 31 March 1984 as amended by Regulation               requests, is by reason of the significant repercussions it has
     ( EEC ) No 764/89 ( 3 ) of 20 March 1989 , prohibiting            in this matter an infringement of Article 5 of the EC
     joint ventures and authorizing joint agricultural                 Treaty.
     holdings partly devoted to dairy farming ?
H OJ No L 90, 1 . 4 . 1984, p . 13 .
(2 ) OJ No L 90, 1 . 4 . 1984, p . 10 .
(3 ) OJ No L 84, 29 . 3 . 1989, p . 2 .                                Action brought on 18 January 1995 by the Commission of
                                                                        the European Communities against the French Republic
                                                                                (Case C-17/95 )
                                                                                ( 95/C 54/23
                                                                       An Action against the French Republic was brought before
Action brought on 18 January 1995 by the Commission of                 the Court of Justice of the European Communities on
the European Communities against the Kingdom of                        18 January 1995 by the Commission of the European
                                 Spain                                 Communities, represented by Gerard Rozet, Legal Adviser,
                          ( Case C-16/95 )                             acting as Agent, with an address for service in Luxembourg
                                                                       at the office of Georgios Kremlis, of the Legal Service,
                            ( 95/C 54/22 )                             Wagner Centre, Kirchberg.
An action against the Kingdom of Spain was brought before              The applicant claims that the Court should:
the Court of Justice of the European Communities on
18 January 1995 by the Commission of the European                      1 . declare that, by not adopting the laws, regulations and
Communities, represented by Blanca Rodriguez Galindo                        administrative provisions necessary in order to comply
and Enrico Traversa, both of the Legal Service, acting as                   with
Agents, with an address for service in Luxembourg at the
office of Georgios Kremlis, a member of the Legal Service of                — Council Directive 91/67/EEC of 28 January 1991
the Commission, Wagner Centre, Kirchberg.                                        concerning the animal health conditions governing
                                                                                the placing on the market of aquaculture animals
                                                                                and products (*),
The applicant claims that the Court should:
                                                                            — Council Directive 91 /628/EEC of 19 November
1 . declare that the Kingdom of Spain has failed to fulfil its                   1991 on the protection of animals during transport
     obligations under the Treaty:                                               and amending Directives 90/425/EEC and
                                                                                91/496/EEC ( 2), and
     (a ) in not respecting the time-limit of six months for the
           refund of value added tax to taxable persons not                 — Council Directive 92/35/EEC of 29 April 1993
           established in the territory of the country contrary                  laying down control rules and measures to combat
           to Article 7 (4) of the Eighth Directive 79/1072/EEC                  African horse sickness ( 3 ),
           of 6 December 1979 on the arrangements for the
           refund of value added tax to taxable persons not                 and/or by failing to communicate them to the
           established in the territory of the country;                      Commission, the French Republic has failed to fulfil its
                                                                            obligations under the penultimate articles of the said
                                                                             directives and under the EC Treaty;
     ( b) in infringing the duty of cooperation of the Member
           States laid down in Article 5 of the EC Treaty.
                                                                       2. Order the French Republic to pay the costs.
2. Order the Kingdom of Spain to pay the costs .
                                                                       The pleas in law and main arguments are similar to those in
                                                                       Case C- 14/95 (4); the time-limits for transposition expired
Pleas in law and main arguments                                        on 1 January 1993 .
Notwithstanding the existence of Spanish legislation which             (!)  OJ No L 46, 19 . 2 . 1991 , p . 1 .
is in principle in accordance with the Eighth Directive, the           (2 ) OJ No L 340, 11 . 12. 1991 , p. 17.
Commission considers that it has been shown that the                   (3)  OJ No L 157, 10. 6 . 1992, p . 19 .
time-limit of six months for the refund of VAT to taxable              (4 ) See this edition of the OJ, p . 12 .
persons not established in the territory of the country is not
always respected by the relevant department of the Spanish


title: Action brought on 2 March 1995 by the Federal Republic of Germany against the Commission of the European Communities (Case C-54/95)

text:
3 . 6 . 95              EN                    Official Journal of the European Communities                                  No C 137/7
3 . the Kingdom of Spain is ordered to pay the costs.                    5 . Export refund of                         DM 518 181,00,
                                                                             which the German authorities are said to be obliged to
( ) OJ No C 188 , 9 . 7 . 1994 .                                             recover because the exports of beef in the years 1986/87
( 2 ) OJ No L 330 , 29 . 11 . 1990 , p . 44 .                                 on which it was based went not to South Africa but in
                                                                              fact to Zimbabwe .
                                                                         6 . Special premium for beef producers of
                                                                                DM 3 118 563,54 .
Action brought on 2 March 1995 by the Federal Republic of
Germany against the Commission of the European                           On point 1
                             Communities
                                                                         The reason given by the Commission for imposing the
                          ( Case C-54/95 )                               penalty, namely that the German customs authorities
                            ( 95/C 137/13 )                              delayed in transposing the judgment of the Court of Justice
                                                                         of 22 June 1993 in Case C-54/91 ( 2 ), is not justified : the new
An action against the Commission of the European                         administrative procedure, not objected to by the
Communities was brought before the Court of Justice of the               Commission, has in fact been applied since 19 November
 European Communities on 2 March 1995 by the Federal                     1993 .
 Republic of Germany, represented by Ernst Roder,
 Ministerialrat, and Gereon Thiele, of the Federal Ministry of           Moreover, there is no legal basis for a penalty. The
 Economic Affairs, 53107 Bonn, Germany .                                 Commission does not have the authority independently to
                                                                         fix such penalty payments or lump sums — which is what
The applicant claims that the Court should :                             the 'penalty' at issue here purports to be — without
                                                                         complying with a single one of the conditions of
 1.    annul Commission Decision 94/ 871 /EC of 21 December              Article 171 ( 2 ) of the EC Treaty .
       1994 (') on the clearance of the accounts presented by
       the Member States in respect of the expenditure for               On point 2
       1991 of the European Agricultural Guidance and
       Guarantee Fund ( EAGGF ) Guarantee Section,                       The entitlement to an export refund is conditional on the
       document SG ( 94 ) D/ 19706 of 29 December 1994                   existence of an export. It is established that cattle left the
       ( COM ( 94 ) 3308 final ), in so far as it refuses to             territory of the Community and were released into free
       recognize the sum of DM 116 633 582,10 ;                          circulation in Poland . Whether those exports might perhaps
                                                                         not have been effected if only the refund rate for cattle for
 2 . order the defendant to pay the costs .                              slaughter had been applicable, is of no relevance for the
                                                                         definition of an export for the purpose of the rules on
 Pleas in law and main arguments adduced in support:                     refunds . Since the cattle exported corresponded to the
                                                                         definition of breeding animals — under German law, in the
 The application contests the charging of the following                   absence of Community rules, in accordance with
 amounts :
                                                                          Article 6 ( 1 ) of Directive 77/504/EEC — the Federal
                                                                          Republic of Germany was obliged to pay the export refund
  1 . Penalty of                                DM 1 013 451,17           for animals for breeding.
       equivalent to 10% of a sum charged to the Federal
       Republic of 5 % of the production refunds for the use of           The Commission is wrong to criticise the German
       starch and sugar on the ground of breaches of provisions           Government on the ground that the German customs
       of Regulations ( EEC ) No 2169/86 and ( EEC )                      authorities did not react quickly enough to indications of
       No 1729/78 respectively.                                           possible abuses . The German authorities had long since
                                                                          taken measures when the Commission adopted Community
  2 . Export refunds of                        DM 54 275 090,69
                                                                          rules in March ( Regulation ( EEC ) No 811/92 ) and August
       relating to exports of livestock to Poland as breeding             1992 ( Regulation ( EEC ) No 2342/92 ).
       animals of the bovine species .
  3 . Part of claims to reimbursement against the firm Imex               On point 3
       on the ground of export benefits obtained by deception,
        penalty for failure to comply with the time limit                 The German investigating authorities did not infringe any
        prescribed for stating a position, amounting to                   legal obligation which could give rise to a financial charge,
                                              DM 56 692 508,70 .          and in particular not their obligation under Article 5 of the
                                                                          EC Treaty in conjunction with Article 8 of Regulation ( EEC )
  4 . Export refund of                             DM 997 814,00          No 729/70 to recover sums wrongly paid . The Commission
        allowed to the firm Siidfleisch for exports of beef, in           has no power to instruct a Member State as to which of
        respect of which evidence of arrival in the United Arab           several possible investigative measures it must carry out.
        Emirates — which turned out to be false — was
        originally produced , and after an extension of the time          The fault of an auxiliary customs officer in their
        limit had been granted by the German authorities,                 employment must indeed be imputed to the German
        evidence of the arrival of the shipment in Lebanon was            customs authorities, but charging is recognized only to the
        produced .                                                        extent of the contravention found by the German criminal
 ---pagebreak--- No C 137/8              EN                 Official Journal of the European Communities                                        3 . 6 . 95
court; the Commission cannot disregard that criminal                  Reference for a preliminary ruling from the Sozialgericht
court's findings of fact.                                             Niirnberg by order of that court of 16 January 1995 in the
                                                                      case    of   Francisco       Bastos     Moriana    and     Others
There is no legal basis for imposing a penalty. The German                    v. Bundesanstalt fur Arbeit, Kindergeldstelle
 Government gave the Commission the notifications                                             ( Case C-59/95 )
prescribed by Articles 3 and 5 ( 2 ) of Regulation ( EEC )                                      ( 95/C 137/14 )
No 595/91 ; that Regulation contains no further obligation
to make the notifications by a specified date at the latest.
                                                                      Reference has been made to the Court of Justice of the
                                                                      European Communities by an order of the Sozialgericht
On point 4
                                                                      Niirnberg ( Social Court, Nuremberg ) of 16 January 1995 ,
                                                                      which was received at the Court Registry on 7 March 1995 ,
The Commission's complaint that the German authorities                for a preliminary ruling in the case of Francisco Bastos
did not apply Article 47 ( 4 ) of Regulation ( EEC )                  Moriana and Others v. Bundesanstalt fur Arbeit,
No 3665/87 correctly is unfounded . The Hauptzollamt                  Kindergeldstelle, on the following questions :
 ( Principal Customs Office ) had to presume in the
circumstances that the Siidfleisch firm had done everything
within its power to produce the Lebanon arrival certificate           1 . Must Article 77 ( 2 ) ( b ) in conjunction with Article 79 ( 1 )
in time; if they had suggested that Siidfleisch intended to               of Regulation ( EEC ) No 1408/71 (*) be interpreted as
cause delay, that might have entailed the illegality of the               meaning that family allowances for dependent children
decision, which had to be taken in accordance with respect                of pensioners who have acquired entitlement to a
for the rule of law ( in particular the principle of equal                pension in a Member State not only on the basis of the
treatment in Article 3 of the German Basic Law).                          legislation of that Member State but also on the basis of
                                                                          the coordinating provisions of European social law are
                                                                          to be paid by the Member State in which the pensioners
In the exercise of its discretion with respect to the extension           do not reside as a benefit supplement equal to the
of a time limit, the Principal Customs Office was not able to             difference between the amount of the benefits provided
allege that Siidfleisch had produced the — objectively                    for in that Member State and the benefits paid or
falsified — information on the arrival at the destination with
                                                                          provided for by the State of residence ?
fraudulent intent or gross negligence; that view was
confirmed by the Staatsanwaltschaft ( Public Attorney's
Office ) and the customs investigators . Where — as in the            2 . Must Article 78 (2 ) ( b ) in conjunction with Article 79 ( 1 )
present case — EC law leaves a discretion to the Member                   of Regulation ( EEC ) No 1408/71 be interpreted as
States , it is not open to the Commission to make the exercise            meaning that family allowances for orphans of a
of that discretion subject to its own views .                             deceased worker or self-employed person who was
                                                                          subject to the legislation of several Member States, if
                                                                          entitlement to an orphan's pension in a Member State
On point 5                                                                whose law applied does not exist solely on the basis of
                                                                          the legislation of that Member State or on the basis of
The German authorities did not infringe any legal obligation              the coordinating provisions of European social law, are
which could give rise to a financial charge, and in particular            to be paid by the Member State in which the orphans do
not their obligation under Article 5 of the EC Treaty in                  not reside as a benefit supplement equal to the difference
conjunction with Article 8 of Regulation ( EEC ) No 729/70                between the amount of the benefits provided for in that
to recover sums wrongly paid . On the basis of the findings               Member State and the benefits paid or provided for by
                                                                          the State of residence ?
made by the German authorities, it is to be presumed that
the goods in question reached the South African market first
and were traded there; that corresponding certificates of             3 . If the replies to questions 1 and 2 are in the affirmative
fitness for consumption were subsequently issued in                       and there is entitlement to family allowances, must the
Zimbabwe is irrelevant, in so far as those certificates give no           amount of the benefit supplement be reduced according
indication as to the route actually taken by the goods and                to the ratio between the periods of insurance in the
may later have abusively been allocated to consignments of                Member State and the periods of insurance of the same
meat other than those for which they were issued .                        kind in the State of residence (or another Member
                                                                          State )?
On point 6
                                                                     4 . Is entitlement to benefit supplement precluded by the
                                                                          fact that a pension benefit granted under a social
The applicant refers to the pending Case C-41 /94 ( 3 ) for               insurance agreement has not been converted in
reasons .
                                                                          accordance with Article 94 ( 5 ) of Regulation ( EEC )
                                                                          No 1408/71 ?
(M OJ No L 352 , 31 . 12 . 1994 , p . 82 .
( 2 ) OJ No C 189 , 13 . 7 . 1993 , p. 7 .
( ? ) OJ No C 90, 26 . 3 . 1994 , p . 6 .                             (M OJ No L 149 , 5 . 7. 1971 , p . 2 .


title: Action brought on 17 July 1997 by Bernard Lavorel against the Commission of the European Communities (Case T-214/97)

text:
C 318/24               EN                 Official Journal of the European Communities                                 18 . 10 . 97
the Council did not state any reasons for its decision and           linguist with responsibility at the time for automatic
did not publish its Decision as required by Article 14 ( 2 )         translation in Brussels' was not sufficient positively to
of Regulation (EC ) No 384/96 .                                      identify the applicant, and, even if it were, it was not
                                                                     defamatory.
The second to 14th applicants will suffer loss arising
directly out of the Council's Decision. The Commission's             In support of his claims, the applicant argues in particular
definitive findings in the anti-dumping investigation were           that there is nothing in Article 24 of the Staff Regulations
that, if duties were not imposed, the negative trend of the          to the effect that, in the case of damage caused to an
Community industry would continue, with the possibility              official by statements, allusions or allegations concerning
of its disappearance .                                               his character, the duty to provide assistance applies only
                                                                     where it is established that those statements, allusions or
                                                                     allegations are false. Specifically, for defamation to have
                                                                     taken place it is not necessary that the inaccuracy of the
                                                                     alleged fact be proven, but merely that its accuracy be not
                                                                     proven .
Action brought on 17 July 1997 by Bernard Lavorel
                                                                     The applicant also complains that the inquiry procedure
   against the Commission of the European Communities
                                                                     concerning his request for assistance did not give him the
                        ( Case T-214/97 )                            opportunity to state his case .
                          ( 97/C 318/47)
                                                                     Finally, the applicant claims that a parallel file exists in
                                                                     relation to him, and complains of the Commission's
                (Language of the case: French)                       unwillingness to promote him, which, he maintains, is
                                                                     influenced by documents included in that file, of whose
                                                                     existence he was unaware .
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 17 July 1997                 (■) [ 1995 ECR-SC IA, p. 233 .
by Bernard Lavorel, residing in Brussels, represented by
Yves Rosenoer, of the Brussels Bar with an address for
service at 98 , rue J. B. Colyns.
The applicant claims that the Court should:
                                                                     Action brought on 24 July 1997 by Lema SA against the
                                                                               Commission of the European Communities
— annul the Commission's decision of 15 May 1997 on                                           Case T-216/97 )
     the applicant's complaint by registered letter of
     16 December 1996,                                                                        ( 97/C 318/48 )
— order the Commission to assist the applicant,                                       (Language of the case: French)
— order the Commission to make good the damage                       An action against the Commission of the European
                                                                     Communities was brought before the Court of First
     suffered by the applicant.
                                                                     Instance of the European Communities on 24 July 1997
                                                                     by Lema SA, whose registered office is at Gennevilliers
                                                                     ( France ), represented by Fabrice Goguel, of the Paris Bar,
Pleas in law and main arguments adduced in support:                  with an address for service in Luxembourg at the
                                                                     Chambers of Aloyse May, 31 Grand-Rue .
The applicant challenges the refusal of the Commission to            The applicant claims that the Court should:
provide him with assistance, pursuant to Article 24 of the
Staff Regulations, following a number of allegedly
defamatory statements contained in tracts distributed by             — annul the Commission Decision dated 24 April 1997,
the R and D trade union, according to which Mr Lavorel
had directly contributed to the drawing up of a parallel
file concerning another official .                                   — declare the applicant entitled to non-recovery, post
                                                                           clearance, of the duties in dispute,
The Commission maintains that the tracts in question did             — in the alternative, declare the applicant entitled to the
no more than reproduce recitals in the judgment of the                     remission of those duties,
Court of First Instance in Joined Cases T-39/93 and T-553/
93 , Baltsavias v. Commission ('). Moreover, the reference
in the publication in question to a 'French former lawyer           — order the Commission to pay the costs.