title: Judgment of the Court (Fifth Chamber) of 21 November 2002 in Case C-473/00 (Reference for a preliminary ruling from the tribunal d'instance de Vienne): Cofidis SA v Jean-Louis Fredout (Directive 93/13/EEC — Unfair terms in consumer contracts — Action brought by a seller or supplier — National provision prohibiting the national court from finding a term unfair, of its own motion or following a plea raised by the consumer, after the expiry of a limitation period)

text:
C 7/4                    EN                       Official Journal of the European Communities                                          11.1.2003
1.    Articles 43 EC and 48 EC preclude a national provision such            preliminary ruling in the proceedings pending before that
      as that at issue in the main proceedings, which excludes the           court between Cofidis SA and Jean-Louis Fredout, on the
      transferor at undervalue of shares in companies from the benefit       interpretation of Council Directive 93/13/EEC of 5 April 1993
      of deferral of tax due on capital gains made on those shares           on unfair terms in consumer contracts (OJ 1993 L 95,
      where the transfer is to a foreign legal person in which the           p. 29), the Court (Fifth Chamber), composed of: M. Wathelet,
      transferor directly or indirectly has a holding — provided that        President of the Chamber, C.W.A. Timmermans,
      that holding gives him definite influence over the decisions of        D.A.O. Edward, A. La Pergola and P. Jann (Rapporteur),
      that foreign legal person and allows him to determine its              Judges; A. Tizzano, Advocate General; L. Hewlett, Principal
      activities — or to a Swedish limited company which is a branch         Administrator, for the Registrar, has given a judgment on
      of such a foreign legal person.                                        21 November 2002, in which it has ruled:
2.    Articles 56 EC and 58 EC preclude a national provision such
                                                                             Council Directive 93/13/EEC of 5 April 1993 on unfair terms in
      as that at issue in the main proceedings, which excludes the
                                                                             consumer contracts precludes a national provision which, in proceed-
      transferor at undervalue of shares in companies from the benefit
                                                                             ings brought by a seller or supplier against a consumer on the basis
      of deferral of tax due on capital gains made on those shares
                                                                             of a contract concluded between them, prohibits the national court,
      where the transfer is to a foreign legal person in which the
                                                                             on expiry of a limitation period, from finding, of its own motion or
      transferor directly or indirectly has a holding which is not such
                                                                             following a plea raised by the consumer, that a term of the contract
      as to give him definite influence over the decisions of that
                                                                             is unfair.
      foreign legal person or allow him to determine its activities.
                                                                             (1 ) OJ C 61 of 24.2.2001.
( 1) OJ C 45 of 10.2.2001.
                  JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                           (Fifth Chamber)                                                            (Sixth Chamber)
                       of 21 November 2002                                                         of 21 November 2002
in Case C-473/00 (Reference for a preliminary ruling from                    in Case C-23/01 (Reference for a preliminary ruling from
the tribunal d’instance de Vienne): Cofidis SA v Jean-                       the Hof van Beroep te Brussel): Robelco NV v Robeco
                           Louis Fredout (1)                                                             Groep NV (1)
(Directive 93/13/EEC — Unfair terms in consumer contracts                    (Directive 89/104/EEC — Article 5(5) — Provisions on
— Action brought by a seller or supplier — National                          protection against use of a sign other than for the purposes
provision prohibiting the national court from finding a term                 of distinguishing goods or services — Extent of such
unfair, of its own motion or following a plea raised by the                              protection — Signs similar to the mark)
        consumer, after the expiry of a limitation period)
                                                                                (2003/C 7/07)
                            (2003/C 7/06)
                                                                                (Language of the case: Dutch)
                     (Language of the case: French)
                                                                             (Provisional translation; the definitive translation will be published
(Provisional translation; the definitive translation will be published                          in the European Court Reports)
                    in the European Court Reports)
                                                                             In Case C-23/01: Reference to the Court under Article 234 EC
In Case C-473/00: Reference to the Court under Article 234                   by the Hof van Beroep te Brussel (Belgium) for a preliminary
EC by the Tribunal d’instance de Vienne (France) for a                       ruling in the proceedings pending before that court between


title: Case T-149/02: Action brought on 8 May 2002 by Deutsche SiSi-Werke GmbH & Co. Betriebs KG against Office for the Harmonisation of the Internal Market (trade marks and designs)

text:
C 180/26              EN                     Official Journal of the European Communities                                      27.7.2002
Action brought on 8 May 2002 by SiSi-Werke GmbH &                       Pleas in law relied on:        —    Infringement                of
Co. Betriebs KG against the Office for Harmonisation in                                                     Article 7(1)(c) of Regulation
       the Internal Market (Trade Marks and Designs)                                                        No 40/94 (1)
                                                                                —    No need to refuse the mark
                                                                                claimed registration
                        (Case T-148/02)
                                                                                —    Infringement                of
                                                                                Article 7(1)(b) of Regulation
                        (2002/C 180/45)                                                                     No 40/94
                                                                                —    German registrations       for
                                                                                upright bottles
                  (Language of the case: German)
                                                                        (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                            Community trade mark (OJ 1994 L 11, p. 1).
An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on 8 May
2002 by SiSi-Werke GmbH & Co. Betriebs KG, of Eppelheim,
Germany, represented by H. Eichmann, G. Barth, U. Blumen-
röder, C. Niklas-Falter, M. Kinkeldey, K. Brandt, A. Franke,
U. Stephani, B. Allekotte, E. Pfrang, K. Lochner and B. Ertle,
lawyers.
                                                                        Action brought on 8 May 2002 by Deutsche SiSi-Werke
                                                                        GmbH & Co. Betriebs KG against Office for the Harmonis-
                                                                           ation of the Internal Market (trade marks and designs)
The applicant claims that the Court should:
—     annul the decision of the Second Board of Appeal of the                                    (Case T-149/02)
      Office for Harmonisation in the Internal Market (Trade
      Marks and Designs) of 28 February 2002 in case R 722/
      1999-2, relating to Community trade mark application                                       (2002/C 180/46)
      number 573 428, in so far as it relates to goods in
      Class 32 of the Nice Agreement corresponding to the
      following description: fruit drinks and fruit juices;                               (Language of the case: German)
—     order the defendant to pay the costs.
                                                                        An action against Office for Harmonisation in the Internal
                                                                        Market (trade marks and designs) was brought before the
                                                                        Court of First Instance of the European Communities on 8 May
                                                                        2002 by Deutsche SiSi-Werke Gmb H & Co. Betriebs KG,
Pleas in law and main arguments                                         Eppelheim (Germany), represented by H. Eichmann, G. Barth,
                                                                        U. Blumenröder, C. Niklas-Falter, M. Kinkeldey, K. Brandt,
                                                                        A. Franke, U. Stephani, B. Allekotte, E. Pfrang, K. Lochner and
Trade mark applied for:       Three-dimensional mark in the             B. Ertle.
                              shape of an upright bottle —
                              application No 573 428
                                                                        The applicant claims that the Court should:
Goods or services:            After limiting the list of goods
                              and services: goods in Class 32
                              (fruit drinks and fruit juices)           —     Annul the decision of the Second Board of Appeal of the
                                                                              Office for Harmonisation in the Internal Market (trade
                                                                              marks and designs) of 28.2.2002 in Case R 720/1999-2
Decision        contested     Refusal to register by the Exam-                concerning the application for Community Trade Mark
before the Board of           iner                                            No 573 048 in so far as it concerns goods falling within
Appeal:                                                                       class 32 of the Nice Agreement with the following
                                                                              description: fruit drinks and fruit juices:
Decision of the Board of      Dismissal of the applicant’s appeal
Appeal:                                                                 —     Order the defendant to pay the costs of the proceedings.
 ---pagebreak--- 27.7.2002             EN                      Official Journal of the European Communities                                        C 180/27
Pleas in law and main arguments                                          The applicant claims that the Court should:
The Community trade           A three-dimensional mark in the
mark concerned:               form of a flat-bottomed pouch —            —     annul the decision of the Second Board of Appeal of the
                              Application No 573 048                           Office for Harmonisation in the Internal Market (Trade
                                                                               Marks and Designs) of 28 February 2002 in case R 723/
Goods or services:            After restriction of the goods and               1999-2, relating to Community trade mark application
                              services categories: Goods in class              number 573 626, in so far as it relates to goods in
                              32 (Fruit drinks and Fruit juices)               Class 32 of the Nice Agreement corresponding to the
                                                                               following description: fruit drinks and fruit juices;
Decision        contested     Examiner’s refusal to register
before the Board of
Appeal:                                                                  —     order the defendant to pay the costs.
Decision of the Board of      Rejection of the applicant’s com-
Appeal:                       plaint
Grounds of claim:             —     Infringement                 of
                                    Article 7(1)(c) of Regulation
                                                                         Pleas in law and main arguments
                                    (EC) No 40/94 (1);
                              —     No need to exclude the trade
                                    mark from registration as a
                                    mark;                                Trade mark applied for:       Three-dimensional mark in the
                                                                                shape of an upright bottle —
                              —     Infringement                 of                                    application No 573 626
                                    Article 7(1)(b) of Regulation
                                    (EC) No 40/94;
                                                                         Goods or services:            After limiting the list of goods
                              —     German registered marks for                                        and services: goods in Class 32
                                    flat-bottomed pouches.                                             (fruit drinks and fruit juices)
(1) Council Regulation (EC) No 40/94 of 20.12.1993 on the Com-           Decision        contested     Refusal to register by the Exam-
    munity trade mark (OJ 1993 L 11, p. 1).                              before the Board of           iner
                                                                         Appeal:
                                                                         Decision of the Board of      Dismissal of the applicant’s appeal
                                                                         Appeal:
Action brought on 8 May 2002 by SiSi-Werke GmbH &                        Pleas in law relied on:       —     Infringement                of
Co. Betriebs KG against the Office for Harmonisation in                                                      Article 7(1)(c) of Regulation
       the Internal Market (Trade Marks and Designs)                                                         No 40/94 (1)
                                                                                —     No need to refuse the mark
                        (Case T-150/02)                                                                      claimed registration
                                                                                —     Infringement                of
                        (2002/C 180/47)                                                                      Article 7(1)(b) of Regulation
                                                                                No 40/94
                  (Language of the case: German)                                                       —     German registrations       for
                                                                                upright bottles
An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
                                                                         (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
Court of First Instance of the European Communities on 8 May                 Community trade mark (OJ 1994 L 11, p. 1).
2002 by SiSi-Werke GmbH & Co. Betriebs KG, of Eppelheim,
Germany, represented by H. Eichmann, G. Barth, U. Blumen-
röder, C. Niklas-Falter, M. Kinkeldey, K.Brandt, A. Franke,
U. Stephani, B. Allekotte, E. Pfrang, K. Lochner and B. Ertle,
lawyers.


title: Cases C-327/03 and C-328/03: Reference for a preliminary ruling by the Bundesverwaltungsgerichts by order of that Court of 30 April 2003 in the case of Federal Republic of Germany, represented by the Bundesministerium für Wirtschaft und Technologie against ISIS Multimedia Net GmbH und Co. KG and Firma O2 (Germany) GmbH and Co. OHG

text:
18.10.2003            EN                          Official Journal of the European Union                                               C 251/3
Beroep voor het bedrijfsleven (Administrative Court for Trade                rights either from the national scheme to the European
and Industry) of 26 June 2003, received at the Court Registry                scheme or, conversely, from the European scheme to the
on 30 June 2003, for a preliminary ruling in the proceedings                 national scheme;
between Arch Timber Protection BV and College voor de
toelating van bestrijdingsmiddelen; party to these proceedings:
Stichting Behoud Leefmilieu en Natuur Maas en Waal on the               2.   in that by providing that the worker concerned must
following question:                                                          expressly waive the right to transfer from the Belgian
                                                                             scheme to the European scheme or by causing an
                                                                             administrative practice to that effect, without the afore-
Does the Substances Directive permit a Member State to lay                   mentioned comparison having been made, these provi-
down additional conditions for the placing on the market and                 sions mislead or could mislead the worker;
use of a biocidal product the active substance of which is
included in Annex I to the Substances Directive?
                                                                        3.   and in that these national provisions do not allow years of
                                                                             service as an official of the European Union to be taken
                                                                             into account for the purposes of the grant of an early
                                                                             national pension?
                                                                        (1) English special edition Series-I I Chapter 1968(II) p. 475.
Reference for a preliminary ruling by the Tribunal du
Travail de Bruxelles by judgment of that Court of
20 May 2003 in the case of Gregorio MY against
            L'Office National des Pensions (O.N.P.)
                        (Case C-293/03)                                 Reference for a preliminary ruling by the Bundesver-
                                                                        waltungsgerichts by order of that Court of 30 April
                                                                        2003 in the case of Federal Republic of Germany, repre-
                        (2003/C 251/06)                                 sented by the Bundesministerium für Wirtschaft und
                                                                        Technologie against ISIS Multimedia Net GmbH und Co.
                                                                            KG and Firma O2 (Germany) GmbH and Co. OHG
Reference has been made to the Court of Justice of the
European Communities by judgment of the Tribunal du
Travail de Bruxelles (Brussels Labour Court) of 20 May 2003,                             (Cases C-327/03 and C-328/03)
received at the Court Registry on 4 July 2003, for a prelimin-
ary ruling in the case of Gregorio MY against L'Office                                             (2003/C 251/07)
National des Pensions (O.N.P.) (National Pensions Office) on
the following questions:
                                                                        Reference has been made to the Court of Justice of the
Are national provisions, such as the Belgian Law of 21 May              European Communities by order of the Bundesverwaltungs-
1991 (establishing a certain relationship between the Belgian           gerichts (Federal Administrative Court) of 30 April 2003,
pension schemes and those of international public law bodies)           received at the Court Registry on 28 July 2003, for a preli-
and the second paragraph of Article 4 of the Belgian Royal              minary ruling in the case of Federal Republic of Germany,
Decree of 23 December 1996 (implementing Articles 15, 16                represented by the Bundesministerium für Wirtschaft und
and 17 of the Law of 26 July 1996 modernising social security           Technologie against ISIS Multimedia Net GmbH und Co. KG
and ensuring the viability of the statutory pension schemes), or        and Firma O2 (Germany) GmbH and Co. OHG on the follow-
Article 11 of Annex VIII to the Staff Regulations of Officials          ing questions:
of the European Communities, not contrary to Articles 2, 3,
17, 18, 39, 40, 42 and 283 of the EC Treaty and Article 7
of Regulation (EEC) No 1612/68 of 15 October 1968 on
freedom of movement for workers within the Community (1):               1.   Is Directive 97/13/EC (1) of the European Parliament and
                                                                             of the Council of 10 April 1997 on a common frame-
                                                                             work for general authorisations and individual licences in
1.   in that these national provisions and the Staff Regulations             the field of telecommunications services (OJ 1997 L 117,
     do not allow a citizen of the European Union, such as the               p. 15) to be interpreted as meaning that, in respect of the
     plaintiff, whose professional career has been carried out               allocation of telephone numbers by the national regula-
     first in an undertaking or in a national public service and             tory authority, a fee taking account of the economic value
     then in the European Union civil service, or vice versa, to             of the telephone numbers allocated may be imposed even
     compare the pension benefits which he would obtain                      though a telecommunications undertaking operating on
     under each scheme, be it national or European, through                  the same market and occupying a dominant position on it
     transfer of rights acquired under the other schemes, and                took over free of charge from its predecessor in law, the
     based on this comparison, to request transfer of these                  former State undertaking with a monopoly, a very large
 ---pagebreak--- C 251/4                 EN                    Official Journal of the European Union                                          18.10.2003
     quantity of telephone numbers and the retrospective               basic telecommunications networks, is exempted from those
     imposition of fees in respect of this old stock is not            charges which are, however, payable by every other operator.
     possible for reasons of national law?
If the answer to Question 1 is in the affirmative:                     The more favourable treatment reserved for PT Comunicações
                                                                       compared to other operators as regards the economic condi-
                                                                       tions for the granting of rights of way is not objectively
2.   In such a situation may the new entrants to the market,           justified. Reserving to PT Comunicações treatment which
     irrespective of the level of their other entry costs and          differs from that afforded to other operators without any
     without an associated analysis of their competitive               objective justification whatsoever constitutes unequal treat-
     chances in comparison with the dominant undertaking,              ment in respect of the granting of rights of way to PT
     be charged for the allocation of a telephone number a             Comunicações, which amounts to infringement of Article 4d
     one-off fee in the amount of a particular percentage (in          of the Directive.
     this case 0,1 %) of the estimated annual sales which can
     be attained if the telephone number is passed on to a final
     customer?                                                         (1) Commission Directive 90/388/EEC of 28 June 1990 on competi-
                                                                           tion in the markets for telecommunications services (OJ L 192 of
                                                                           24 July 1990, p. 10).
(1) OJ L 117, p. 15.                                                   (2) Commission Directive 96/19/EC of 13 March 1996 amending
                                                                           Directive 90/388/EEC with regard to the implementation of full
                                                                           competition in telecommunications markets (OJ L 74 of 22 March
                                                                           1996, p. 13).
Action brought on 30 July 2003 by the Commission of
the European Communities against the Portuguese
                              Republic
                                                                       Reference for a preliminary ruling by the Tribunale
                          (Case C-334/03)                              Ordinario di Torino — Sezione del Giudice per le
                                                                       Indagini Preliminari — by order of that Court of 15 July
                          (2003/C 251/08)                                          2003 in the case against Fabrizio Barra
An action against the Portuguese Republic was brought before                                     (Case C-337/03)
the Court of Justice of the European Communities on 30 July
2003 by the Commission of the European Communities,
                                                                                (2003/C 251/09)
represented by A. M. Alves Vieira and S. Rating, acting as
Agents, with an address for service in Luxembourg.
The applicant claims that the Court should:                            Reference has been made to the Court of Justice of the
                                                                       European Communities by order of the Tribunale Ordinario
                                                                       di Torino — Sezione del Giudice per le Indagini Preliminari —
                                                                       (District Court, Turin — Preliminary Investigations Section) of
(1)   Declare that, by failing to ensure in practice the transpo-      15 July 2003, received at the Court Registry on 1st August
      sition into national law of Article 4d of Directive              2003, for a preliminary ruling in the case against Fabrizio
      90/388/EEC (1) in the latest version amended by                  Barra on the following questions:
      Directive 96/19/EC (2), the Portuguese Republic has failed
      to fulfil its obligations; and
(2)   Order the Portuguese Republic to pay the costs.                  1.    Must Article 44(3)(g) of the Treaty, Articles 2(1)(f) and 6
                                                                             of the first directive (Directive 68/151/EEC (1)) and
                                                                             Article 2(2), (3) and (4) of the fourth directive (Directive
                                                                             78/660/EEC (2), as amended by Directive 83/349 (3) and
Pleas in law and main arguments                                              Directive 90/605 (4)), be interpreted as meaning that that
                                                                             legislation precludes a law of a Member State according to
                                                                             which it is not a punishable offence for companies to
Article 13 of Law No 91/97 exempts the operators of basic                    infringe their obligations concerning disclosure and the
telecommunications networks from the payment of fees for                     provision of accurate information where statements are
the installations of their networks and the granting of the                  made which, although intended to deceive members of the
necessary rights of access to the public domain. As a result                 public with a view to securing an unjust profit, are the
of that provision, PT Comunicações, being the sole operator of               consequence of estimated valuations which, taken indivi-


title: Case T-295/01: Action brought on 3 December 2001 by Nordmilch eG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
C 44/22                EN                     Official Journal of the European Communities                                       16.2.2002
European Communities on 3 December 2001 by Lucı́a                        The applicant claims that the Court should:
Aparicio Chofré, residing in Valencia (Spain), represented by
Gloria Ballester Cañada, lawyer.
                                                                         —     annul the decision adopted on 19 September 2001 by
                                                                               the Third Board of Appeal in Case No R 826/2000-3;
The applicant claims that the Court should:
                                                                         —     order the defendant to proceed with the registration
                                                                               proceedings in respect of Community trade mark appli-
—     annul the decision of the selection board in general                     cation No 607895, in particular to re-open the opposition
      competition COM/B/01 in the event that it does not mark                  proceedings pending under opposition No B 190746
      the tests sat by the applicant on 6 July 2001.                           and, following the conclusion of those opposition pro-
                                                                               ceedings, in so far as Community trade mark application
                                                                               No 607895 is not found to be excluded from registration
                                                                               in accordance with the first sentence of Article 43(5) of
                                                                               the Community trade mark regulation (1), order the
Pleas in law and main arguments                                                defendant to register the trade mark applied for pursuant
                                                                               to Article 45 of that regulation;
The applicant claims that the contested decision, which
excludes her from the competition on the ground that                     —     order the defendant to pay the costs.
she does not meet the conditions relating to professional
experience required under Point III.B of the competition notice,
not only adversely affects her but, moreover, is unlawful and
contrary to the wording of the competition notice (1), according
to which candidates must have acquired, by the deadline for              Pleas in law and main arguments
the submission of applications, at least 4 years’ professional
experience. The applicant argues that, in accordance with the
criteria laid down in the notice for the calculation of the period       The trade mark applied         the verbal mark ‘OLDENBURGER’
of professional experience, she has shown that she has acquired          for:                           — Application No 607895
7 years and 8 months of experience, so that the board should
have allowed her to take part in the competition.                        Goods or services:             goods in Classes 29, 30 and 32
                                                                                (including milk and dairy prod-
                                                                                ucts)
(1) Published in OJ 2001 C 24A.
                                                                         Decision         contested     refusal of registration by the
                                                                         before the Board of            examiner
                                                                         Appeal:
                                                                         Decision of the Board of       rejection of the appeal
                                                                         Appeal:
                                                                         Grounds of claim:              —     error of law in the appli-
                                                                                cation of Article 7(1)(c) and
Action brought on 3 December 2001 by Nordmilch eG                                                             Article 7(2) of Regulation
against the Office for Harmonisation in the Internal                                                          (EC) No 40/94;
               Market (Trade Marks and Designs)
                                                                                —     misinterpretation of Article
                                                                                12(b) of Regulation (EC)
                         (Case T-295/01)                                                                      No 40/94;
                                                                                —     error of law by the defendant
                          (2002/C 44/41)                                                                      in failing to call upon the
                                                                                applicant to give a dis-
                                                                                claimer.
                   (Language of the case: German)
                                                                         (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
An action against the Office for Harmonisation in the Internal
                                                                             Community trade mark (OJ 1994 L 11, p. 1).
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
3 December 2001 by Nordmilch eG, of Zeven (Germany),
represented by C. Spintig, lawyer.


title: Judgment of the Court of 8 February 2000 in Case C-17/98 (reference for a preliminary ruling from the Arrondissementsrechtbank te 's-Gravenhage): Emesa Sugar (Free Zone) NV v Amba (Conditions governing association of overseas countries and territories — Decision 97/803/EC — Sugar imports — ACP/OCT cumulation of origin — Assessment of validity — National court — Interim measures)

text:
8.4.2000                   EN                       Official Journal of the European Communities                                             C 102/5
The question whether the reception by a hotel establishment of                 2. Interim measures vis-à-vis a non-Community authority can be
satellite or terrestrial television signals and their distribution by cable        ordered by a national court in the event of an infringement of
to the various rooms of that hotel is an ‘act of communication to the              Community law being imminent only:
public’ or ‘reception by the public’ is not governed by Council
Directive 93/83/EEC of 27 September 1993 on the coordination of                    — if that court entertains serious doubts as to the validity of the
certain rules concerning copyright and rights related to copyright                      Community measure implemented by that authority and,
applicable to satellite broadcasting and cable retransmission, and                      should the question of the validity of the contested measure
must consequently be decided in accordance with national law.                           not already have been brought before the Court of Justice,
                                                                                itself refers that question to the Court of Justice;
(1) OJ C 299 of 26.9.1998.                                                         — if there is urgency and a threat of serious and irreparable
                                                                                damage to the applicant;
                                                                                — and if the national court takes due account of the Com-
                                                                                munity’s interests.
                                                                                The fact that such interim measures would be ordered vis-à-vis
                                                                                an authority of an overseas country or territory (OCT) by a court
                   JUDGMENT OF THE COURT                                           of a Member State, in accordance with its domestic law, is not
                                                                                such as to affect the conditions under which the temporary
                           of 8 February 2000                                      protection of individuals must be ensured in proceedings before
                                                                                the national courts when the dispute concerns a matter of
                                                                                Community law.
in Case C-17/98 (reference for a preliminary ruling from
the Arrondissementsrechtbank te ’s-Gravenhage): Emesa
                 Sugar (Free Zone) NV v Amba (1)                               (1) OJ C 94 of 28.3.1998.
(Conditions governing association of overseas countries and
territories — Decision 97/803/EC — Sugar imports —
ACP/OCT cumulation of origin — Assessment of validity
              — National court — Interim measures)
                                                                                JUDGMENT OF THE COURT
                             (2000/C 102/07)
                                                                                (Sixth Chamber)
                       (Language of the case: Dutch)
                                                                                of 10 February 2000
(Provisional translation; the definitive translation will be published         in Case C-50/96 (reference for a preliminary ruling from
                      in the European Court Reports)                           the Landesarbeitsgericht Hamburg): Deutsche Telekom
                                                                                AG v Lilli Schröder (1)
In Case C-17/98: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Arrondissements-                   (Equal pay for men and women — Article 119 of the EC
rechtbank te ’s-Gravenhage (Netherlands) for a preliminary                     Treaty (Articles 117 to 120 of the EC Treaty have been
ruling in the proceedings pending before that court between                    replaced by Articles 136 EC to 143 EC) — Protocol
Emesa Sugar (Free Zone) NV and Aruba — on the validity of                      concerning Article 119 of the EC Treaty — Occupational
Council Decision 97/803/EC of 24 November 1997 amending                        social security schemes — Exclusion of part-time workers
at mid-term Decision 91/482/EEC on the association of the                      from a supplementary occupational retirement pension
overseas countries and territories with the European Economic                  scheme — Retroactive membership — Entitlement to a
Community (OJ 1997 L 329, p. 50) — the Court, composed                         pension — Relationship between national law and Com-
of: G.C. Rodrı́guez Iglesias, President, J.C. Moitinho de Almeida                                             munity law)
and D.A.O. Edward (Presidents of Chambers), P.J.G. Kapteyn,
J.-P. Puissochet, G. Hirsch, P. Jann, H. Ragnemalm and                                                      (2000/C 102/08)
M. Wathelet (Rapporteur), Judges; D. Ruiz-Jarabo Colomer,
Advocate General; H.A. Rühl, Principal Administrator, for the
Registrar, has given a judgment on 8 February 2000, in which                                        (Language of the case: German)
it has ruled:
1. Examination of the first ten questions submitted has disclosed no           (Provisional translation; the definitive translation will be published
     factor of such a kind as to affect the validity of Council Decision                             in the European Court Reports)
     97/803/EC of 24 November 1997 amending at mid-term
     Decision 91/482/EEC on the association of the overseas                    In Case C-50/96: reference to the Court under Article 177 of
     countries and territories with the European Economic Com-                 the EC Treaty (now Article 234 EC) from the Landesarbeitsge-
     munity.                                                                   richt Hamburg (Germany) for a preliminary ruling in the


title: Judgment of the Court (Fifth Chamber) of 25 February 1999 in Case C-131/97 (reference for a preliminary ruling from the Pretura Circondariable, Bologna): Analisa Carbonari and Others v. Università degli Studi di Bologna and Others (Right of establishment - Freedom to provide services - Doctors - Medical specialities - Training periods - Remuneration - Direct effect)

text:
1.5.1999                  EN                      Official Journal of the European Communities                                            C 121/5
                   JUDGMENT OF THE COURT                                     — That obligation in itself does not, however, enable the national
                                                                                court to determine which body is liable to pay the appropriate
                            (Fifth Chamber)                                       remuneration or the level thereof.
                         of 25 February 1999                                 The national court is required, however, when it applies provisions of
                                                                             national law adopted either before or after a directive, to interpret
                                                                             them as far as possible in the light of the wording and the purpose of
in Case C-131/97 (reference for a preliminary ruling from
                                                                             that directive.
the Pretura Circondariable, Bologna): Analisa Carbonari
and Others v. Università degli Studi di Bologna and
                                Others (1)                                   (1) OJ C 166, 31.5.1997.
(Right of establishment — Freedom to provide services —
Doctors — Medical specialties — Training periods —
                   Remuneration — Direct effect)
                            (1999/C 121/08)
                                                                                JUDGMENT OF THE COURT
                      (Language of the case: Italian)
                                                                                (Fifth Chamber)
(Provisional translation; the definitive translation will be published                               of 25 February 1999
                     in the European Court Reports)
                                                                              in Joined Cases C-164/97 and C-165/97: European Parlia-
In Case C-131/97: reference to the Court under Article 177 of                          ment v. Council of the European Union (1)
the EC Treaty by the Pretura Circondariale (District Magistrates’
Court), Bologna, Italy, for a preliminary ruling in the proceed-             (Regulations on the protection of forests against atmospheric
ings pending before that court between Annalisa Carbonari                    pollution and fire — Legal basis — Article 43 of the EC
and Others and Università degli Studi di Bologna, Ministero                  Treaty — Article 130s of the EC Treaty — Parliament’s
della Sanità, Ministero dell’Università e della Ricerca Scientifica,                                      prerogatives)
Ministero del Tesoro — on the interpretation of Council
Directive 82/76/EEC of 26 January 1982 amending Directive
75/362/EEC concerning the mutual recognition of diplomas,                                               (1999/C 121/09)
certificates and other evidence of formal qualifications in
medicine, including measures to facilitate effective exercise of
the right of establishment and freedom to provide services                                        (Language of the case: French)
and Directive 75/363/EEC concerning the coordination of
provisions laid down by law, regulation or administrative
action in respect of activities of doctors (OJ L 43, 15.2.1982,              (Provisional translation; the definitive translation will be published
p. 21) — the Court (Fifth Chamber), composed of: J.C.                                            in the European Court Reports)
Moitinho de Almeida, acting for the President of the Chamber,
C. Gulmann, D.A.O. Edward (Rapporteur), L; Sevón and M.                     In Joined Cases C-164/97: European Parliament (Agents:
Wathelet, Judges; P. Léger, Advocate-General; L. Hewlett,                    Johann Schoo and João Sant’ Anna) v. Council of the European
Administrator, for the Registrar, has given a judgment on                    Union (Agents: John Carbery and Thérèse Blanchet), supported
25 February 1999 in which it has ruled:                                      by Commission of the European Communities (Agents: Xavier
                                                                             Lewis and Pieter van Nuffel) — application for the annulment
Article 2(1) (c) of Council Directive 75/363/EEC of 16 June 1975             of Council Regulation (EC) No 307/97 of 17 February 1997
concerning the coordination of provisions laid down by law, regulation       amending Regulation (EEC) No 3528/86 on the protection of
or administrative action in respect of activities of doctors and point 1     the Community’s forests against atmospheric pollution (OJ L
of the Annex thereto, as amended by Council Directive 82/76/EEC              51, 21.2.1997, p. 9) and of Council Regulation (EC) No 308/97
of 26 January 1982 amending Directive 75/362/EEC concerning                  of 17 February 1997 amending Regulation (EEC) No 2158/92
the mutal recognition of diplomas, certificates and other evidence of        on protection of the Community’s forests against fire (OJ L 51,
formal qualifications in medicine, including measures to facilitate          21.2.1997, p. 11) — the Court (Fifth Chamber), composed of:
effective exercise of the right of establishment and freedom to provide      J.-P. Puissochet (Rapporteur), President of the Chamber, J. C.
services and Directive 75/363/EEC, must be interpreted as follows:           Moitinho de Almeida, C. Gulmann, L. Sevón and M. Wathelet,
                                                                             Judges; Advocate-General: F. G. Jacobs; Registrar: H. A. Rühl,
— The obligation to provide appropriate remuneration for periods             Principal Administrator, has given a judgment on 25 February
     of training in specialised medicine is binding only in respect of       1999, in which it:
     the medical specialties which are common to all the Member
     States or to two or more of them and are mentioned in Article 5
     or Article 7 of Council Directive 75/362/EEC of 16 June 1975,           1. annuls Council Regulation (EC) No 307/97 of 17 February
                                                                                1997 amending Regulation (EEC) No 3528/86 on the
— That obligation is unconditional and sufficiently precise in so far             protection of the Community’s forests against atmospheric
     as it requires, for a medical specialist to be able to benefit from          pollution and Council Regulation (EC) No 308/97 of 17 Febru-
     the system of mutual recognition established by Directive                    ary 1997 amending Council Regulation (EEC) No 2158/92 on
     75/362/EEC, that his training be full-time and remunerated,                  protection of the Community’s forests against fire;


title: Removal from the register of T-231/95

text:
18 . 10 . 97             EN                Official Journal of the European Communities                                 C 318/35
Pleas in law and main arguments adduced in support:                   payment, that is he suffers from an illness which prevents
                                                                      him from performing his normal duties and his invalidity
                                                                      is the result of a mental illness arising from an
This action has been brought against the implied rejection            occupational disease .
of the complaint submitted against the implied rejection of
the request for an invalidity pension .
In support of this application the applicant claims to fulfil
the conditions laid down by the applicable legislation
( Article 78 of the Staff Regulations and Articles 13 and 16                   Removal from the register of T-231/95 ( ')
of Annex VIII thereto ) for entitlement to the said pension:                                       ( 97/C 318/68 )
he suffers total permanent invalidity brought about while
completing periods of pensionable service which prevents
him from pursuing any employment. The medical check                               (Language of the case: Portuguese)
up prior to entering the service did not reveal that the
applicant was suffering from any illness or complaint.                By order of 4 July 1997 the President of Second Chamber
                                                                      of the Court of First Instance of the European
                                                                      Communities has ordered the removal from the register of
The applicant would observe that the granting of the                  Case T-231 /95 : SIC, Sociedade Independente de
pension is subject to the prior declaration that the                  Comunica^ao SA v. Commission of the European
acceptance of the resignation tendered by the applicant is            Communities .
null and void or non-existent. In this regard the
application refers to the arguments put forward in Case
T-27/97 C v. Commission ( M.                                          (') OJ C 77, 16 . 3 . 1996 .
(') OJ C 181 , 15 . 6 . 1997, p . 15 .
                                                                              Removal from the register of T- 163/97 R (')
                                                                                ( 97/C 318/69
Action brought on 8 September 1997 by C against the
          Commission of the European Communities                                       (Language of the case: Dutch)
                          ( Case T-250/97)
                                                                      By order of 8 July 1997 the President of the Court of First
                            ( 97/C 318/67)                            Instance of the European Communities has ordered the
                                                                      removal from the register of Case T-163/97 R:
                                                                      Netherlands Antilles v. Commission of the European
                (Language of the case: Spanish)                       Communities .
An action against the Commission of the European                      (') OJ C 212, 12 . 7. 1997.
Communities was brought before the Court of First
Instance of the European Communities on 8 September
1997 by C, represented by Valeriano Hernandez Martin,
of the Madrid Bar, with an address for service at 2, Calle
Conde de la Cimera, Madrid .
                                                                               Removal from the register of T-155/96 (')
The applicant claims that the Court should award him an                                            ( 97/C 318/70 )
invalidity payment following the completion of the
appropriate procedure .                                                              (Language of the case: German)
Pleas in law and main arguments adduced in support:                   By order of 9 July 1997 the President of the Third
                                                                      Chamber, Extended Composition, of the Court of First
                                                                      Instance of the European Communities has ordered the
This action has been brought against the implied rejection            removal from the register of Case T-155/96 : City of Mainz
of the complaint submitted against the implied rejection of           ( Federal Republic of Germany ) v. Commission of the
the request for an invalidity payment as provided for in              European Communities .
Article 73 of the Staff Regulations .
                                                                      (') OJ C 354, 23 . 11 . 1996 .
The applicant claims to fulfil all the requirements laid
down by law for entitlement to the abovementioned


title: Reference for a preliminary ruling by the Bundesgerichtshof by order of that court of 26 June 1997 in the case of Unibank A/S v. Fleming G. Christensen (Case C-260/97)

text:
27 . 9 . 97               EN                    Official Journal of the European Communities                                   C 295/ 13
Reference for a preliminary ruling from the Finanzgericht                      the basis for enforcement and if it can constitute the
Diisseldorf, by order of that court of 2 July 1997, in the                     basis for enforcement under the law of the State in
      case of Uwe Clees against Hauptzollamt Wuppertal                         which it was drawn up, albeit subject to the condition
                           ( Case C-259/97 )                                   that the court with jurisdiction to enforce it may
                                                                               refuse the creditor's application for enforcement if, as
                              ( 97/C 295/ 19 )                                 a result of objections to the basis for enforcement,
                                                                               there    are   doubts      as  to   whether  enforcement
                                                                               proceedings should be continued ?
Reference has been made to the Court of Justice of the
European Communities by order of the Finanzgericht                             If the answer to Question 1 is in the affirmative :
( Finance Court) Diisseldorf of 2 July 1997, received at the
Court Registry on 18 July 1997, for a preliminary ruling                   2 . Can an application for recognition of a decision or
in the case of Uwe Clees v. Hauptzollamt Wuppertal on
                                                                               authentic instrument submitted to a court having local
the following question:                                                        jurisdiction within the meaning of Article 32 ( 2 ) of the
                                                                               Brussels    Convention      be  rendered inadmissible   or
                                                                               unfounded by reason of the fact that, while appeal
Is Heading No 9705 of the combined nomenclature of                             proceedings ( Article 36 of the Brussels Convention )
Regulation (EEC ) No 2658/87 (*) in the version of Annex I                     are pending, the debtor has left the State in which the
thereto, as amended by Regulation ( EEC ) No 2472/90 ( 2 ),                    proceedings were instituted and his new place of
to be interpreted as meaning that as a rule motor vehicles                     residence is unknown ?
as collectors' pieces of historical interest:
      are required merely to be in their original state —
      without substantial changes to the chassis, steering or
       braking system, engine, etc .,
                                                                           Reference for a preliminary ruling by the Arbeidshof,
                                                                           Antwerp by judgment of that court of 11 July 1997 in the
       at least 30 years old, and                                          case of Rijksdienst voor Pensioenen against Robert
                                                                                Engelbrecht
                                                                                ( Case C-262/97 )
— of a model or type which is no longer in production ?
                                                                                ( 97/C 295/21 )
(') OJ L 256 , 7 . 9 . 1987, p . 1 .
( 2 ) OJ L 247, 10 . 9 . 1990 , p . 1 .                                    Reference has been made to the Court of Justice of the
                                                                           European Communities by judgment of the Arbeidshof
                                                                           ( Higher Labour Court ), Antwerp, of 11 July 1997,
                                                                           received at the Court Registry on 21 July 1997, for a
                                                                           preliminary ruling in the case of Rijksdienst voor
                                                                           Pensioenen against Robert Engelbrecht on the following
                                                                           questions:
Reference for a preliminary ruling by the Bundes
gerichtshof by order of that court of 26 June 1997 in the                  1.   Is the view that a national court which concludes that
          case of Unibank A/S v. Fleming G. Christensen
                                                                                an applicable national provision requiring a migrant
                            ( Case C-260/97 )                                   worker's pension to be reduced ( such as Article 3 ( 1 )
                                                                                and Article 3 ( 8 ) of the Belgian Law of 20 July 1990
                               ( 97/C 295/20 )
                                                                                requiring the amount of the pension received by a
                                                                                migrant worker's spouse to be deducted from that
                                                                                worker's household pension, on the ground that the
 Reference has been made to the Court of Justice of the                         spouse's pension is a benefit equivalent to a pension)
 European Communities by order of the Bundesgerichtshof                         and considers that it is impossible to interpret that
 ( Federal Court of Justice ) of 26 June 1997, which was                        national rule in such a way as to eliminate the
 received at the Court Registry on 18 July 1997, for a                          unexpected adverse effects of the lack of coordination
 preliminary ruling in the case of Unibank A/S v. Fleming                       between social security schemes in the interests of free
 G. Christensen on the following questions :                                    movement of workers or holds that the application of
                                                                                that rule in the case in point constitutes an obstacle to
                                                                                free movement of workers, may not disapply the
 1 . Is a promissory note signed by a debtor without the                        relevant Belgian legislation, compatible with
       involvement of a public official —               such as the             Community law, in particular Articles 5 , 48 and 51
       gceldsbrev under Danish law ( Paragraph         478 ( 1 ) ( 5 ) of       of the Treaty of 25 March 1957 establishing
       the Danish Law on the Administration            of Justice ) —           the European Economic Community and, more
       an authentic instrument within the                meaning of             specifically, the principles of free movement of
       Article   50     of the Brussels        Convention,    if that           workers and cooperation in good faith between the
       promissory note expressly specifies that it can serve as                 competent authorities ?


title: Case C-376/01: Action brought on 28 September 2001 by the Commission of the European Communities against Ireland

text:
C 317/22               EN                     Official Journal of the European Communities                                    10.11.2001
Pleas in law and main arguments                                          Action brought on 28 September 2001 by the Com-
                                                                         mission of the European Communities against the
                                                                                Kingdom of Belgium
Article 249 EC under which a directive shall be binding as to
the result to be achieved, upon each Member State, carries by
implication an obligation on the Member States to observe the                                     (Case C-377/01)
period for compliance laid down in the directive. That period
expired on 14 May 2000 without the United Kingdom having
enacted the provisions necessary to comply with the directive
                                                                                (2001/C 317/42)
referred to in the conclusions of the Commission.
(1) OJ L 123, 24.4.1998, p. 1-63.                                        An action against the Kingdom of Belgium was brought
                                                                         before the Court of Justice of the European Communities on
                                                                         28 September 2001 by the Commission of the European
                                                                         Communities, represented by G. Valero Jordana and J. Adda,
                                                                         acting as Agents, with an address for service in Luxembourg.
Action brought on 28 September 2001 by the Com-
                                                                         The Commission claims that the Court should declare that:
   mission of the European Communities against Ireland
                          (Case C-376/01)                                —    by virtue of the failure of the competent Belgian auth-
                                                                              orities, whichever they may be, to adopt the measures
                          (2001/C 317/41)                                     necessary to ensure the transposition of Articles 5(c) and
                                                                              (e) and 6(1) of Directive 79/409/EEC (1) with regard to
                                                                              so-called ‘non-indigenous’ species covered by Directive
An action against Ireland was brought before the Court of                     79/409/EEC, where the transactions governed by the
Justice of the European Communities on 28 September 2001                      above mentioned provisions of the directive are not
by the Commission of the European Communities, represented                    import, export or transit, or if those measures have be on
by Richard Wainwright, acting as agent, with an address for                   adopted, by virtue of their failure to communicate them
service in Luxembourg.                                                        to the Commission, and
The Applicant requests that the Court should:                                 —     by virtue of the Federal State’s failure to adopt the
                                                                                provisions necessary to ensure the transposition of
—     declare that by failing to adopt the laws, regulations or                     Articles 5(c) and (e) and 6(1) of Directive
      administrative provisions necessary before 14 May 2000                        79/409/EEC with regard to the import, export and
      to comply with European Parliament and Council Direc-                         transit of so-called ‘non-indigenous’ species covered
      tive 98/8/EC of 16 February 1998 concerning the placing                       by Directive 79/409/EEC, where they are one of the
      of biocidal products on the market (1), or in any event by                    transactions governed by those provisions of the
      failing to communicate them to the Commission, Ireland                        directive, namely the: keeping of birds and eggs, and
      has failed to fulfil its obligations under that Directive;                    the sale, transport for sale, keeping for sale and the
                                                                                offering for sale of live or dead birds and of any
—     order Ireland to pay the costs.                                               readily recognisable parts or derivatives of such
                                                                                birds, or, if those measures had been adopted, by
                                                                                virtue of its failure to communicate them to the
                                                                                Commission,
Pleas in law and main arguments
                                                                              —     the Kingdom of Belgium has failed to fulfil its
Article 249 EC under which a directive shall be binding as to                       obligations under Council Directive 79/409/EEC of
the result to be achieved, upon each Member State, carries by                       2 April 1979 on the conservation of wild birds, and
implication an obligation on the Member States to observe the                       in particular Articles 5(c) and (e) and 6(1) thereof,
period for compliance laid down in the directive. That period                       inasmuch as those provisions have not been adopted
expired on 14 May 2000 without Ireland having enacted the                           by the competent Belgian authorities, or its obli-
provisions necessary to comply with the directive referred to                       gations under Article 18, inasmuch as those pro-
in the conclusions of the Commission.                                               visions, even if adopted, have not been communi-
                                                                                cated to the Commission by the competent Belgian
                                                                                authorities;
(1) OJ L 123, 24.4.1998, p. 1-63.
                                                                         —    order the Kingdom of Belgium to pay the costs


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 17 December 1997 in Case T-217/95: Lucia Passera v. Commission of the European Communities (Officials - Internal competition for advancement from category C to category B - Decision of the selection board failing candidates at the oral test - Scope of the obligation to state reasons - Assessment by the selection board)

text:
7.2.98                EN                 Official Journal of the European Communities                                   C 41/19
  JUDGMENT OF THE COURT OF FIRST INSTANCE                           Chambers of Christian Kramer, 8Ð10 Rue Mathias
                    of 17 December 1997                             Hardt, against the Commission of the European
                                                                    Communities (Agents: Ana Maria Alves Vieira and
in Case T-217/95: Lucia Passera v. Commission of the                Fabrizio Minneci and, for the oral procedure, Gianluigi
                  European Communities (1)                          Valsesia) Ð application for annulment of the decision of
(Officials Ð Internal competition for advancement from              the selection board in internal competition COM/B/9/93
category C to category B Ð Decision of the selection                to award the applicant a mark in the oral test lower than
board failing candidates at the oral test Ð Scope of the            the minimum required and not to include her in the list of
obligation to state reasons Ð Assessment by the selection           successful candidates Ð the Court of First Instance
                            board)                                  (Fourth Chamber), composed of K. Lenaerts, President,
                                                                    and P. Lindh and J. D. Cooke, Judges; A. Mair,
                         (98/C 41/38)                               Administrator, for the Registrar, has given a judgment on
                                                                    17 December 1997, the operative part of which is as
               (Language of the case: French)                       follows:
In Case T-217/95: Lucia Passera, an official of the                 1. The application is dismissed.
Commission of the European Communities, residing at
Overijse (Belgium), represented by Marc-Albert Lucas, of            2. The parties are to bear their own costs.
the LieÁge Bar, with an address for service in Luxembourg
at the Chambers of Evelyne Korn, 21 Rue de Nassau, v.               (1) OJ C 77, 16.3.1996.
Commission of the European Communities (Agents:
Gianluigi Valsesia and Ana Maria Alves Vieira) Ð
application, first, for annulment of the decision of the
selection board in internal competition COM/B/9/93 not
to enter the applicant's name on the list of suitable
candidates and, second, for annulment of the notice of                JUDGMENT OF THE COURT OF FIRST INSTANCE
that competition Ð the Court of First Instance (Fourth                                    (Third Chamber)
Chamber), composed of: K. Lenaerts, President, and P.
                                                                                of 18 December 1997
Lindh and J. D. Cooke, Judges; A. Mair, Administrator,
for the Registrar, has given a judgment on 17 December              in Case T-12/94: FreÂdeÂric Daffix v. Commission of the
1997, in which it:                                                                    European Communities (1)
                                                                    (Officials Ð Removal from post Ð Appeal Ð Case
1. dismisses the action;                                            referred back to the Court of First Instance Ð Truth of
                                                                    the facts Ð Burden of proof Ð Misuse of discretion Ð
2. orders the parties to bear their own costs.                      Manifest error of assessment Ð Rights of the defence Ð
                                                                           Article 7 of Annex IX to the Staff Regulations)
(1) OJ C 16, 20.1.1996.                                                                     (98/C 41/40)
                                                                                (Language of the case: French)
                                                                    In Case T-12/94: FreÂdeÂric Daffix, a former official of the
                                                                    Commission of the European Communities, residing in
  JUDGMENT OF THE COURT OF FIRST INSTANCE                           Brussels, represented by Georges Vandersanden and Laure
                                                                    Levi, of the Brussels Bar, with an address for service in
                      (Fourth Chamber)
                                                                    Luxembourg at the offices of Fiduciaire Myson SARL, 30
                    of 17 December 1997                             Rue de Cessange v. Commission of the European
                                                                    Communities (Agents: Dimitrios Gouloussis and Benoît
in Case T-225/95 Fotini Chiou v. Commission of the
                                                                    Cambier) Ð application for annulment of the
                  European Communities (1)
                                                                    Commission's decision of 18 March 1993 removing the
(Officials Ð Internal competition for movement of                   applicant from his post and, if necessary, the implied
officials from Category C to Category B Ð Decision of               rejection of his complaint Ð the Court of First Instance
the selection board noting the failure of candidates in the         (Third Chamber), composed of B. Vesterdorf, President,
oral test Ð Consistency between the complaint and the               C. P. BrieÈt and A. Potocki, Judges; A. Mair, Administrator,
application Ð Principle of equal treatment for men and              for the Registrar, gave a judgment on 18 December 1997,
women Ð Principle of non-discrimination Ð Assessment                the operative part of which is as follows:
                    of the selection board)
                                                                    1. The application is dismissed.
                         (98/C 41/39)
                                                                    2. Each of the parties shall bear all the costs which it has
               (Language of the case: French)                           incurred in the proceedings before the Court of First
                                                                        Instance and the Court of Justice.
In Case T-225/95: Fotini Chiou, official of the
Commission of the European Communities, residing in                 (1) OJ C 59, 26.2.1994.
Brussels, represented by Lucas Vogel, of the Brussels Bar,
with an address for service in Luxembourg at the


title: Case C-447/07: Judgment of the Court (Sixth Chamber) of 11 September 2008 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Article 39 EC — Employment in the public administration — Masters and officers (chief officers) of vessels — Allocation of State authority on board — Requirement to hold the nationality of the flag Member State)

text:
               8.11.2008

               EN

               Official Journal of the European Union

               C 285/10

         Judgment of the Court (Sixth Chamber) of 11 September 2008 — Commission of the European Communities v Italian Republic
   (Case C-447/07) (1)

   (Failure of a Member State to fulfil obligations - Article 39 EC - Employment in the public administration - Masters and officers (chief officers) of vessels - Allocation of State authority on board - Requirement to hold the nationality of the flag Member State)
   (2008/C 285/16)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: G. Rozet and L. Pignataro-Nolin, acting as Agents)

      Defendant: Italian Republic (represented by: I. Braguglia, Agent, and S. Fiorentino, avvocato dello Stato)
   Re:
   Failure of a Member State to fulfil obligations — Infringement of Article 39 EC — National legislation reserving the posts of master and chief officer on all vessels flying the flag of that Member State to its nationals
   Operative part of the judgment
   The Court:

               1.

               Declares that, by maintaining in its legislation the requirement that masters and chief officers on all vessels flying the Italian flag hold Italian nationality, the Italian Republic has failed to fulfil its obligations under Article 39 EC;

               2.

               Orders the Italian Republic to pay the costs.

      (1)  OJ C 297, 8.12.2007.


title: Case C-149/03: Action brought on 1 April 2003 by the Commission of the European Communities against the Kingdom of Belgium

text:
7.6.2003                 EN                       Official Journal of the European Union                                           C 135/15
Action brought on 28 March 2003 by the Commission of                      2003 by the Commission of the European Communities,
 the European Communities against the Italian Republic                    represented by T. van Rijn, acting as Agent.
                           (Case C-143/03)
                                                                          The applicant claims that the Court should:
                           (2003/C 135/21)
                                                                          —     declare that, by
An action against the Italian Republic was brought before the                   1.    failing to adopt adequate provisions governing the
Court of Justice of the European Communities on 28 March                              utilisation of the quotas allocated to Belgium for the
2003 by the Commission of the European Communities,                                   fishing years 1991 to 1996,
represented by Luca Visaggio and Roberto Amorosi, acting as
Agents.
                                                                                2.    failing to ensure observance of the Community
                                                                                legislation on the conservation of fishery resources
The applicant claims that the Court should:                                           by monitoring fishing activity and adequately moni-
                                                                                toring the landing and recording of catches,
—     Declare that, by subjecting alkaline manganese batteries
      containing less than 0,0005 % of mercury by weight to a                   3.    failing to impose a provisional ban on fishing by
      marking system requiring, in particular, indication of the                      vessels flying its flag or registered in its territory
      presence of heavy metals, the Italian Republic has failed                       once the quota allocated to Belgium had to be
      to fulfil its obligations under Article 28 EC;                                  regarded as exhausted,
—     Order the Italian Republic to pay the costs.
                                                                                4.    failing to take penal or administrative measures
                                                                                against the master or any other person responsible
                                                                                for fishing after the entry into force of bans on
Pleas in law and main arguments                                                       fishing or in the absence of a quota,
                                                                                the Kingdom of Belgium has failed to fulfil its obligations
Alkaline manganese batteries containing less than 0,0005 %                      under Article 5(2) of Council Regulation (EEC) No 170/
of mercury by weight do not fall within the scope of                            83 ( 1) of 25 January 1983 establishing a Community
Council Directive 91/157/EEC on batteries and accumulators                      system for the conservation and management of fishery
containing certain dangerous substances.                                        resources, Article 9(2) of Council Regulation (EEC)
                                                                                No 3760/92 (2) of 20 December 1992 establishing a
                                                                                Community system for fisheries and aquaculture,
In the absence of harmonisation of national laws as regards                     Articles 1 and 11(1) and (2) of Council Regulation (EEC)
such goods, subjecting them to the marking requirement                          No 2241/87 ( 3) of 23 July 1987 establishing certain
provided for in Article 5(1) and (2) of Decree No 476/97                        control measures for fishing activities and Articles 2,
constitutes a barrier to the free movement of goods contrary                    21(1) and (2) and 31 of Council Regulation (EEC)
to Article 28 EC, there being no obvious overriding reason                      No 2847/93 ( 4) of 12 October 1993 establishing a control
relating to the public interest to justify its adoption.                        system applicable to the common fisheries policy;
                                                                          —     order the Kingdom of Belgium to pay the costs.
Action brought on 1 April 2003 by the Commission                          Pleas in law and main arguments
of the European Communities against the Kingdom of
                               Belgium
                           (Case C-149/03)                                Infringement of Article 5(2) of Regulation (EEC) No 170/83
                                                                          and Article 9(2) of Regulation (EEC) No 3760/92: under these
                                                                          provisions, the Member States are to lay down the criteria for
                           (2003/C 135/22)                                the distribution of the quotas allocated to them and detailed
                                                                          rules for the utilisation of those quotas. The Commission finds
                                                                          that, during the period 1991 to 1996, there was overfishing in
                                                                          respect of 22 fishery resources and that, in several cases, the
An action against the Kingdom of Belgium was brought before               quota was exceeded by more than 10 %, with the result that
the Court of Justice of the European Communities on 1 April               the Kingdom of Belgium has failed to fulfil its obligations.
 ---pagebreak--- C 135/16                 EN                       Official Journal of the European Union                                          7.6.2003
Infringement of Article 1 of Regulation (EEC) No 2241/87 and              The applicant claims that the Court, in upholding its appli-
Article 2 of Regulation (EEC) No 2847/93: these provisions                cation, should:
require the Member States to monitor fishing activity by
vessels flying their flag. In that connection, they must carry
out all necessary inspections. From the figures concerning the
number of cases of overfishing, and the extent thereof, it is             1.    Declare that, by imposing, contrary to Directives 68/
plainly apparent that the Belgian authorities failed to take                    360 ( 1), 73/148 (2) and 90/365 ( 3), the obligations to
the control measures necessary to prevent those cases of                        obtain a residence visa for the issue of a residence permit
overfishing.                                                                    to nationals of a non-Member State, who are members of
                                                                                the family of a Community national who has exercised
                                                                                his right to freedom of movement, and, by not granting,
                                                                                contrary to Directive 64/221 ( 4), a residence permit as
Infringement of Article 11(2) of Regulation (EEC) No 2241/87                    soon as possible and, at the latest, within the six months
and Article 21(2) of Regulation (EEC) No 2847/93: the                           following the application for a permit, the Kingdom of
Belgian authorities clearly acted negligently in regard to the                  Spain has failed to fulfil its obligations under the EC
management of the quotas by failing, in several cases, to                       Treaty.
impose at the appropriate time a closing date for fishing.
                                                                          2.    Order the Kingdom of Spain to pay the costs.
Infringement of Article 1(2) of Regulation (EEC) No 2241/87
and 31 of Regulation (EEC) No 2847/93: where fishing vessels
landed fish after the closing date for fishing of the relevant fish
stock or without a quota for that fish stock having been
allocated to Belgium, the masters of those vessels acted in
breach of Community law. The Belgian authorities were
therefore obliged to institute penal or administrative proceed-
ings against those masters or any other persons responsible.              Pleas in law and main arguments
The Belgian Government has provided no evidence that that
has been done.
( 1) OJ 1983 L 24, p. 1.                                                  The formalities which may be required by a Member State of a
( 2) OJ 1992 L 389, p. 1.                                                 Community national exercising his right to freedom of move-
( 3) OJ 1987 L 207, p. 1.                                                 ment or of a member of his family are clearly circumscribed
( 4) OJ 1993 L 261, p. 1.                                                 by the relevant Community legislation with the result that, in
                                                                          the Commission’s view, it is plainly contrary to the letter and
                                                                          spirit of Community law, as laid down in Directives 68/360,
                                                                          73/148 and 90/360, for a Member State to require any other
                                                                          formality in connection with entry or residence.
                                                                          As a consequence of that premiss, the Commission is of the
                                                                          view that the Spanish legislation and practice, in accordance
Action brought on 7 April 2003 by the Commission of                       with the matters established, conflict with those principles of
the European Communities against the Kingdom of Spain                     Community law. Essentially, the residence visa required under
                                                                          Spanish legislation is an instrument enabling the national
                                                                          authorities to examine — prior to entry into Spanish territory
                          (Case C-157/03)                                 — the reasons why a national of a non-Member State wishes
                                                                          to reside for more than three months on national territory.
                          (2003/C 135/23)
                                                                          The national of a non-Member State who is the member of the
                                                                          family of a Community national exercising the right to
An action against the Kingdom of Spain was brought before                 freedom of movement cannot be assimilated to the national of
the Court of Justice of the European Communities on 7 April               a non-Member State without that family tie. On the contrary,
2003 by the Commission of the European Communities,                       that national of a non-Member State is the beneficiary of
represented by Carmel O’Reilly, Legal Adviser, and by Luis                derived rights under Community law and thus enjoys rights of
Escobar Guerrero, of its Legal Service, with an address for               entry into and residence in the territory of another Member
service in Luxembourg.                                                    State at the same time as the Community national.


 16 . 3 . 96           EN                  Official Journal of the European Communities                                      No C 77/ 19
The applicant claims that the Court should :                          that such promotion was justified by his qualifications and
                                                                      situation, and that this has undeniably caused him to suffer
— annul the definitive staff report for the period from               material and non-material damage .
      1 July 1991 to 30 June 1993 , dated 6 November 1995 ,
     which was notified to the applicant on 9 November                (') Case T-161 /95 ( OJ No C 268 , 14 . 10 . 1995 , p . 27 ).
      1995 ,
— award the sum of Bfr 250 000, to be increased or
     decreased as appropriate during the course of the
     proceedings, as compensation for the material damage                   Removal from the register of Case T-106/92 (')
     suffered by the applicant in consequence of his having
     been denied any chance of promotion,                                                         ( 96/C 77/40 )
— award the sum of Bfr 75 000, to be increased or                                    (Language of the case: French)
     decreased as appropriate during the course of the
     proceedings, as compensation for the non-material                By order of 25 January 1996 the President of the Second
     damage suffered by the applicant,                                Chamber of the Court of First Instance of the European
                                                                      Communities ordered the removal from the register of Case
— order the Council to pay all of the costs.                          T- 106/92 : Erik Dan Frederiksen v. European Parliament.
Pleas in law and main arguments:                                      (') OJ No C 34 , 6 . 2 . 1993 .
The applicant states that he did not agree with the initial
version of his staff report for 1991 /1993 , and that this
prompted him, after he had taken certain internal steps, to
bring an action before the Court of First Instance ( 1 ). The
defendant then drew up a fresh report covering the same                     Removal from the register of Case T- 1 97/94 ( J )
period . That definitive report is contested by the applicant in                                 ( 96/C 77/41 )
the present case .
                                                                                (Language of the case: German)
The applicant pleads, first, infringement of Article 43 of the
Staff Regulations of officials and of the guide to staff              By order of 31 January 1996 the President of the Third
reports, which provide for a periodical report to be drawn            Chamber ( Extended Composition ) of the Court of First
up at least once every two years; he maintains that the first         Instance of the European Communities ordered the removal
report was communicated to him over 15 months late, and               from the register of Case T-197/94 : Scholler Lebensmittel
the second nearly two years late . In consequence of the              GmbH & Co . KG v. Commission of the European
delay, it was only possible, at meetings of the promotion             Communities .
committee, to assess the applicant on the basis of the report
drawn up in relation to him at the expiry of his probationary         (') OJ No C 188 , 9 . 7 . 1994 .
period . In his view, it may reasonably be concluded that, if
the staff report had been drawn up in good time, that would
have greatly ameliorated his professional situation .
The applicant also maintains that the procedure followed                    Removal from the register of Case T-92/95 ( ! )
was irregular, inasmuch as it is apparent from an
examination of the two reports that they were signed by the                                      ( 96/C 77/42 )
first and second assessors before being signed by the
applicant, despite the fact that the guide to staff reports                          (Language of the case: Italian)
provides for the report to be signed by the second assessor
after the official concerned has been given an opportunity of        By order of 29 January 1996 the President of the Second
making comments or remarks thereon and, where                         Chamber of the Court of First Instance of the European
appropriate, of requesting a discussion or exchange of views          Communities ordered the removal from the register of Case
with the second assessor.                                            T-92/95 : Tiziano Boggian v. Commission of the European
                                                                     Communities .
Lastly, the applicant states that those irregularities have
deprived him of any chance of promotion, despite the fact             (') OJ No C 159 , 24 . 6 . 1995 .