C 144/30              EN                 Official Journal of the European Communities                                 15.6.2002
       Removal from the register of Case C-425/99 (1)                      Removal from the register of Case C-369/00 (1)
                         (2002/C 144/53)                                                   (2002/C 144/56)
By order of 11 December 2001 the President of the Court of
Justice of the European Communities ordered the removal             By order of 6 March 2002 the President of the Court of Justice
from the register of Case C-425/99 (Referral for a preliminary      of the European Communities ordered the removal from the
ruling by the Bundessozialgericht): Akhtar Seyed Abbasy v           register of Case C-369/00: Kingdom of the Netherlands v
Landeskreditbank Baden-Württemberg — Förderbank                     Council of the European Union.
                                                                    (1) OJ C 316 of 4.11.2000.
(1) OJ C 34 of 5.2.2000.
                                                                           Removal from the register of Case C-387/00 (1)
       Removal from the register of Case C-29/00 (1)
                         (2002/C 144/54)                                                   (2002/C 144/57)
By order of 7 February 2002 the President of the Court of           By order of 22 March 2002 the President of the Court of
Justice of the European Communities ordered the removal             Justice of the European Communities ordered the removal
from the register of Case C-29/00: Commission of the                from the register of Case C-387/00: European Parliament v
European Communities v Federal Republic of Germany.                 Council of the European Union.
(1) OJ C 149 of 27.5.2000.                                          (1) OJ C 355 of 9.12.2000.
       Removal from the register of Case C-321/00 (1)                      Removal from the register of Case C-393/00 (1)
                         (2002/C 144/55)                                                   (2002/C 144/58)
By order of 20 March 2002 the President of the Court of
Justice of the European Communities ordered the removal             By order of 24 January 2002 the President of the Court of
from the register of Case C-321/00: Federal Republic of             Justice of the European Communities ordered the removal
Germany v Commission of the European Communities.                   from the register of Case C-393/00: Commission of the
                                                                    European Communities v Hellenic Republic.
(1) OJ C 335 of 25.11.2000.                                         (1) OJ C 355 of 9.12.2000.


title: Case F-68/13: Action brought on 9 July 2013 — ZZ v ECB

text:
               21.9.2013

               EN

               Official Journal of the European Union

               C 274/31

         Action brought on 9 July 2013 — ZZ v ECB
   (Case F-68/13)
   2013/C 274/51
   Language of the case: English

      Parties

      Applicant: ZZ (represented by: L. Levi, Lawyer)

      Defendant: European Central Bank

      Subject-matter and description of the proceedings

   The annulment of the decision of the ECB to close the internal administrative inquiry as well as the inquiry report and the compensation of the moral prejudice the Applicant suffered.

      Form of order sought

               —

               Annul the decision of the Executive Board of 7th January 2013 taking note of the Final Report and deciding to close the internal administrative inquiry;

               —

               as a consequence, annul the inquiry and the inquiry report and re-initiate a new inquiry with a regular assessment of facts;

               —

               grant a compensation for the material damage suffered assessed ex aequo et bono at 50 000 euros;

               —

               order the Defendant to pay the costs.


title: Case T-88/07: Action brought on 22 March 2007 — Fabryka Samochodów Osobowych v Commission

text:
               26.5.2007

               EN

               Official Journal of the European Union

               C 117/28

         Action brought on 22 March 2007 — Fabryka Samochodów Osobowych v Commission
   (Case T-88/07)
   (2007/C 117/44)
   Language of the case: Polish
   Parties:

      Applicant: Fabryka Samochodów Osobowych S.A. (Warsaw, Republic of Poland) (represented by: W. Radzikowski, R.A. Kozłowski and G. Dźwigała, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought:

               —

               declare invalid the Commission's decision in so far as concerns Article 2(2), (3) and (4) introducing compensatory measures in the form of: (a) limiting up to the end of February 2011 annual motor-car production by FSO and all of its present and future subsidiaries and all companies controlled by FSO as a shareholder, and (b) a prohibition on applying for new licences up to the end of February 2011;

               —

               order the Commission to pay the applicant's costs.

         Pleas in law and main arguments:
   The applicant seeks a declaration of invalidity in regard to the decision of the European Commission of 20 December 2006 in State aid Case No C 3/2005 [ex N 592/2004 (ex. PL 51/2004)] declaring compatible with the common market aid measures which, according to the wording of the decision, have been partially implemented by Poland in favour of the applicant, in so far as that decision imposes on the applicant/aid recipient an obligation to limit the annual production and sale of motor cars within the territory of the EU until 2011. In its grounds the decision also prohibits the applicant from applying for new licences before the end of 2011.
   In its application for a declaration that the abovementioned decision is invalid, the applicant submits that the decision breaches the provisions of the EC Treaty and essential rules governing its application. The applicant also contends that the contested decision was adopted in a manner which infringed essential procedural requirements.
   In support of its action, the applicant sets out the following heads of complaint:

               —

               in recognising part of the aid as having been implemented, the Commission breached Article 88(3) EC and Article 3 of Council Regulation (EC) No 659/1999 (1) and committed a manifest error in the appraisal of the facts;

               —

               in defining the scope of the compensatory measures, the Commission infringed the principle of proportionality, the principle of free exercise of economic activity, Article 253 EC and paragraphs 11, 32, 37, 39 and 54 of the Community Guidelines on State aid for rescuing and restructuring firms in difficulty (2), and also committed a manifest error in its appraisal of the facts of the case, in particular by reason of the following: improper determination, in the applicant's view, of the value of the public aid by reason of the fact that that value was exaggerated; failure to take account of the form of the aid; improper definition of the appropriate market; incorrect determination of the market share of the applicant, which was the recipient of the aid; failure to take account of essential elements in determining the effects of granting the aid to the applicant; the establishment of compensatory measures which will have an adverse effect on the applicant's recovery of its capacity to function after restructuring has been completed; and also failure to take account of the fact that the applicant operated in regions that were entitled to receive regional aid;

               —

               the Commission infringed the principle of legal certainty and Article 253 EC by introducing into the grounds of the decision an additional compensatory measure which had not been defined in the principal grounds (petitum) of the decision;

               —

               by not providing adequate clarification as to the nature and scope of the compensatory measures imposed, and by not referring to all the proposals notified in that matter, the Commission breached Article 253 EC.

      (1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

      (2)  OJ 1999 C 288, p. 2.


title: Case C-214/10: Reference for a preliminary ruling from the Landesarbeitsgericht Hamm (Germany) lodged on 4 May 2010 — KHS AG v Winfried Schulte

text:
               28.8.2010

               EN

               Official Journal of the European Union

               C 234/20

         Reference for a preliminary ruling from the Landesarbeitsgericht Hamm (Germany) lodged on 4 May 2010 — KHS AG v Winfried Schulte
   (Case C-214/10)
   ()
   2010/C 234/31
   Language of the case: German

      Referring court

   Landesarbeitsgericht Hamm

      Parties to the main proceedings

      Applicant: KHS AG

      Defendant: Winfried Schulte

      Question referred

   Is Article 7(1) of Directive 2003/88/EC (1) to be interpreted as precluding national legislation and/or practices under which entitlement to minimum paid annual leave expires at the end of the reference period and/or carry-over period even in the case where the worker has been unfit for work over a prolonged period (and that prolonged period of unfitness for work has the result that that worker could have accumulated entitlement to minimum leave for several years if the possibility of carrying over such entitlement had not been limited in time)? If that question is answered in the negative, must the possibility of carrying over leave entitlement exist for a period of at least 18 months?

      (1)  Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9).


title: Case T-108/15: Action brought on 27 February 2015 — Bundesverband Glasindustrie and Others v Commission

text:
               27.4.2015

               EN

               Official Journal of the European Union

               C 138/63

         Action brought on 27 February 2015 — Bundesverband Glasindustrie and Others v Commission
   (Case T-108/15)
   (2015/C 138/82)
   Language of the case: German

      Parties

      Applicants: Bundesverband Glasindustrie (Düsseldorf, Germany), Gerresheimer Lohr GmbH (Lohr, Germany), Gerresheimer Tettau GmbH (Tettau, Germany), Noelle + von Campe Glashütte GmbH (Boffzen, Germany), Odenwald Faserplattenwerk GmbH (Amorbach, Germany), O-I Glasspack GmbH & Co. KG (Düsseldorf), Pilkington Deutschland AG (Gelsenkirchen, Germany), Schott AG (Mainz, Germany), SGD Kipfenberg GmbH (Kipfenberg, Germany), Thüringer Behälterglas GmbH Schleusingen (Schleusingen, Germany), Neue Glaswerke Großbreitenbach GmbH & Co. KG (Großbreitenbach, Germany), HNG Global GmbH (Gardelegen, Germany) (represented by: U. Soltész and C. von Köckritz, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               annul Articles 1 and 3(1) of the decision of the European Commission of 25 November 2014, State aid No SA.33995 (2013/C) (ex 2013/NN) — C (2014) 8786 final, relating to the promotion of electricity generation from renewable sources and the payment of the EEG-surcharge for energy-intensive industries, in so far as those provisions provide for the following:

                           (i)

                           the promotion of electricity produced from renewable energy sources on the basis of the German Law for the priority of renewable energy sources (Law on Renewable Energy Sources of 25 October 2008 in the updated version of 1 January 2012 — ‘the EEG 2012’) including its financing mechanism, and

                           (ii)

                           support for the reduced EEG-surcharge for energy-intensive users (special compensation regime — BesAR) according to which Paragraphs 40 et seq of the EEG 2012, for 2013 and 2014, amount to unlawful existing State aid within the meaning of Article 107(1) TFEU, in infringement of Article 108(3) TFEU;

               —

               annul Articles 2, 3(2), 6, 7 and 8 of the contested decision in so far as they declare the incompatibility of the BesAR with the internal market and an order for the repayment of State aid is made; and

               —

               order the Commission to pay the costs incurred by the applicants.

      Pleas in law and main arguments

   In support of the action, the applicants rely on seven pleas in law:

               1.

               The special compensation regime (BesAR) contains no State aid within the meaning of Article 107(1) TFEU, since there is no favourable treatment. The Commission wrongly assumes that the BesAR grants energy-intensive undertakings an advantage amounting to State aid.

               2.

               The EEG-surcharge system and the BesAR contain no State aid, since there is no burden on the State budget. The regulation affects exclusively private funds. The contested decision is incompatible with the Court’s case-law, in particular with the judgment in PreussenElektra.

               3.

               The Commission wrongfully concluded in its statement of reasons that the BesAR has a selective character. There is, however, no derogation from the relevant reference system. In any event, the BesAR is justified by the nature and overall structure of the EEG 2012.

               4.

               The Commission erred in law by assessing the eligibility of BesAR exclusively on the basis of the new Guidelines on State Aid for environmental and Energy 2014-2020.

               5.

               Should the Commission come to the conclusion that the BesAR amounts to ineligible State aid, recovery would in any event not be applicable since at issue is ‘existing aid’.

               6.

               In addition, recovery is to be excluded on account of the protection of legitimate expectations. In particular, the Commission stated in an earlier decision that the EEG-System did not contain State aid.

               7.

               Furthermore, enforcement of an order for recovery for BesAR would not be possible.


title: Case T-153/02: Action brought on 8 May 2002 by SiSi-Werke GmbH & Co. Betriebs KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
27.7.2002             EN                     Official Journal of the European Communities                                        C 180/29
Pleas in law and main arguments                                         The applicant claims that the Court should:
Trade mark applied for:       Three-dimensional mark in the
                              shape of an upright bottle —              —     annul the decision of the Second Board of Appeal of the
                              application No 573 154                          Office for Harmonisation in the Internal Market (Trade
                                                                              Marks and Designs) of 28 February 2002 in case R 747/
                                                                              1999-2, relating to Community trade mark application
Goods or services:            After limiting the list of goods                number 573 360, in so far as it relates to goods in
                              and services: goods in Class 32                 Class 32 of the Nice Agreement corresponding to the
                              (fruit drinks and fruit juices)                 following description: fruit drinks and fruit juices;
Decision        contested     Refusal to register by the Exam-
before the Board of           iner
                                                                        —     order the defendant to pay the costs.
Appeal:
Decision of the Board of      Dismissal of the applicant’s appeal
Appeal:
Pleas in law relied on:       —     Infringement                of
                                    Article 7(1)(c) of Regulation       Pleas in law and main arguments
                                    No 40/94 (1)
                              —     No need to refuse the mark
                                    claimed registration                Trade mark applied for:       Three-dimensional mark in the
                              —     Infringement                of                                    shape of an upright bottle —
                                    Article 7(1)(b) of Regulation                                     application No 573 360
                                    No 40/94
                              —     German registrations       for      Goods or services:            After limiting the list of goods
                                    upright bottles                                                   and services: goods in Class 32
                                                                                (fruit drinks and fruit juices)
(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
    Community trade mark (OJ 1994 L 11, p. 1).                          Decision        contested     Refusal to register by the Exam-
                                                                        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-153/02)                                                                    claimed registration
                                                                                —     Infringement                of
                         (2002/C 180/50)                                                                    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: Case T-394/02: Action brought on 27 December 2002 by Arnaldo Lucaccioni against Commission of the European Communities

text:
C 55/34                  EN                           Official Journal of the European Union                                         8.3.2003
Finally, the applicant alleges breach of the fundamental                      Pleas in law and main arguments
principles of legal certainty, sound administration and good
faith. The applicant makes the point that it has, on numerous
occasions, approached the Commission without ever obtaining                   Trade mark for which         A three-dimensional mark in the
any indication which would have enabled it to provide results                 Community registration       form of a bottle standing on its
likely to be acceptable in the eyes of the Commission and the                 sought:                      head in the colours transparent
Council.                                                                                and white — Application
                                                                                No 1162395
( 1) Council Regulation (EC) No 1756/2002 of 23 September 2002                Goods or services:           Goods of Classes 3 and 20 (includ-
     amending Directive 70/524/EEC concerning additives in feeding-                                        ing soaps, washing and bleaching
     stuffs as regards withdrawal of the authorisation of an additive                                      preparations, cleaning and pol-
     and amending Commission Regulation (EC) No 2430/1999 (Text                                            ishing preparations and artificial
     with EEA relevance) (OJ 2002 L 265, p. 1).                                                            containers for liquid, gel-like and
( 2) Council Directive 70/524/EEC of 23 November 1970 concerning
                                                                                pasty preparations)
     additives in feeding-stuffs (OJ, English Special Edition 1970 (III),
     p. 840).
( 3) Commission Regulation (EC) No 2430/1999 of 16 November                   Decision       challenged    Refusal of registration by the
     1999 linking the authorisation of certain additives belonging to         before the Board of          examiner
     the group of coccidiostats and other medicinal substances in             Appeal:
     feedingstuffs to persons responsible for putting them into circu-
     lation (Text with EEA relevance) OJ 1999 L 296, p. 3.
                                                                              Decision of the Board of     Dismissal of the complaint
                                                                              Appeal:
                                                                              Pleas in law:                —     The mark is distinguished by
                                                                                a number of special features
                                                                                and has distinctive force.
                                                                                —     The Board of Appeal disre-
                                                                                garded the characteristic
Action brought on 27 December 2002 by Henkel KGaA                                                                geometry of the mark.
against the Office for Harmonisation in the Internal
                Market (Trade Marks and Designs)                                                           —     The mark has acquired pro-
                                                                                tection in several Member
                                                                                States.
                           (Case T-393/02)
                            (2003/C 55/86)
                     (Language of the case: German)
                                                                              Action brought on 27 December 2002 by Arnaldo Lucac-
                                                                               cioni against Commission of the European Communities
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                                                (Case T-394/02)
27 December 2002 by Henkel KGaA, Düsseldorf (Germany),
represented by C. Osterrieth, Rechtsanwalt, with an address
                                                                                (2003/C 55/87)
for service in Luxembourg.
                                                                                (Language of the case: French)
The applicant claims that the Court should:
—       set aside the decision of the Fourth Board of Appeal of
        the Office for Harmonisation in the Internal Market of
                                                                              An action against the Commission of the European Communi-
        3 October 2002 in Case R 313/2001-4, concerning
                                                                              ties was brought before the Court of First Instance of the
        Community trade mark registration application
                                                                              European Communities on 27 December 2002 by Arnaldo
        No 1162395;
                                                                              Lucaccioni, residing in St-Leonards-on-Sea (United Kingdom),
                                                                              represented by Juan Ramón Iturriagagoitia and Karine Delvol-
—       order the Office to pay the costs.                                    vé, lawyers.
 ---pagebreak--- 8.3.2003              EN                          Official Journal of the European Union                                            C 55/35
The applicant claims that the Court should:                               The applicant also alleges failure to have regard for the welfare
                                                                          of officials and misuse of powers. The Commission has created
—     annul the decision of the Commission of the European                a situation allowing it to avoid all contact with Dr Cognigni
                                                                          who, for his part, can only pursue the applicant.
      Communities adopted on 7 September 2002 concerning
      complaint R/272/02 lodged by the applicant on 21 May
      2002;
—     order payment in their entirety of: the fees charged by Dr
      Cognigni for his work in the context of the Medical and
      Invalidity Committees concerning the applicant, together
      with reimbursement of the amounts withheld from the
      applicant’s pension; default interest on all those amounts;         Action brought on 27 December 2002 by Eva Vega
      and the costs of the proceedings, including lawyers’,               Rodríguez against the Commission of the European
      translation and process servers’ fees;                                                         Communities
—     compensate the applicant for the non-material damage                                         (Case T-395/02)
      suffered;
                                                                                (2003/C 55/88)
—     order the defendant to pay the costs.
                                                                                (Language of the case: French)
Pleas in law and main arguments
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
The applicant, a former official of the Commission who                    European Communities on 27 December 2002 by Eva Vega
worked in the Berlaymont building, was retired on the                     Rodríguez, residing in Brussels, represented by J.R. Iturriagago-
ground of invalidity in 1991. The applicant’s condition was               itia and K. Delvolvé, avocats
subsequently acknowledged to be an occupational disease. The
applicant appointed Dr Cognigni to sit on the Medical and
Invalidity Committees.                                                    The applicant claims that the Court should:
                                                                          Primarily
The Commission failed to pay Dr Cognigni’s fees. The applicant
then brought Case T-75/98 seeking payment of the fees. That               —     annul the decision of the Commission of the European
case was removed from the register after an out-of-court                        Communities adopted on 27 September 2002 in respect
settlement fixing an amount to be paid to the applicant by                      of Claim No R/297/02 brought by the applicant on
way of additional payment in respect of the work done by the                    5 June 2002;
Invalidity Committee and of the costs incurred in bringing
proceedings before national courts. Contrary to expectation,              —     order the respondent to pay the costs;
Dr Cognigni insisted that the whole of his fees be reimbursed.
He therefore again brought proceedings against the applicant
before the Italian courts. Following a judgment delivered by an           In the alternative
Italian court, Dr Cognigni sought enforcement of the judgment
by way of attachment of the applicant’s pension. The applicant            —     annul the Commission’s decision of 25 June 2002;
is challenging the decision adopted by the Commission
authorising the attachment.                                               —     order the payment of compensation for the damages
                                                                                sustained in the sum of EUR 72 292,36 together with
                                                                                interest until the date of payment at the legal rate;
The applicant would point out that in accordance with the
rules relating to fees incurred in the context of medical and             —     order the respondent to pay the costs.
invalidity committees, the costs are entirely covered by the
Commission.
                                                                          Pleas in law and main arguments
In support of his claims, the applicant alleges breach of the
principle of proportionality and the spurious and vexatious
nature of the attachment ordered by the Commission. Accord-               By the present action, the applicant objects to her exclusion,
ing to the applicant, the Commission ought to have taken                  at the pre-selection stage, from the tests for open competition
account of the fact that the judgment was still open to appeal.           COM/A/10/01.


title: Case T-383/04: Order of the Court of First Instance of 27 September 2006 — Drazdansky v OHIM — Bad Heilbrunner Naturheilmittel (VITACAN)

text:
               18.11.2006

               EN

               Official Journal of the European Union

               C 281/43

         Order of the Court of First Instance of 27 September 2006 — Drazdansky v OHIM — Bad Heilbrunner Naturheilmittel (VITACAN)
   (Case T-383/04) (1)

   (2006/C 281/78)

      Language of the case: German

   The President of the First Chamber has ordered that the case be removed from the register.

      (1)  OJ C 314, 18.12.2004.


title: Case T-365/11 P: Appeal brought on 5 July 2011 by AO against the order of the Civil Service Tribunal of 4 April 2011 in Case F-45/10 AO v Commission

text:
               24.9.2011

               EN

               Official Journal of the European Union

               C 282/27

         Appeal brought on 5 July 2011 by AO against the order of the Civil Service Tribunal of 4 April 2011 in Case F-45/10 AO v Commission
   (Case T-365/11 P)
   2011/C 282/56
   Language of the case: English

      Parties

      Appellant: AO (Brussels, Belgium) (represented by: P. Lewisch, lawyer)

      Other party to the proceedings: European Commission

      Form of order sought by the appellant

               —

               Set aside the order of the Civil Service Tribunal of 4 April 2011 in Case F-45/10 AO v Commission;

               —

               In case the General Court is in the position to decide the case on the merits to give the same form of order as sought at first instance, i.e. to:

                           —

                           Annul decision CMS 07/046 of the European Commission of 23 July 2009 due to harassment, mismanagement and the abuse of the fundamental rights to be heard;

                           —

                           Annul all decisions taken by the appointing authority against the applicant between the period September 2003 until the removing from the post due to harassment and mismanagement, alleging the abuse of the right of the applicant to be heard;

                           —

                           Enable a hearing of the applicant according to Articles 7(1) and 24 of the Staff Regulation (1) and refer in this respect to the submitted requests in February 2008 and March 2008;

                           —

                           Grant a symbolic compensation of EUR 1,00 (one) to the applicant in order to compensate his moral and professional prejudice suffered as exposed in the application, as far as the objective of such a complaint is not financial but rather recognition of the dignity and the professional reputation of the applicant; and

               —

               Order the other party to the proceedings to pay all costs.

      Pleas in law and main arguments

   In support of the appeal, the appellant relies on three pleas in law.

               1.

               First plea in law, alleging that the conditions for a decision by order in accordance with Article 76 of the Rules of Procedure of the Civil Service Tribunal were not met and that the action was not manifestly bound to fail, as:

                           —

                           The Civil Service Tribunal did not take into consideration several claims made and evidence presented with regard to the harassment of the applicant;

                           —

                           The applicant was denied the right to be prescribed a period of time to put his application in order, in accordance with Article 36 of the Rules of Procedure of the Civil Service Tribunal, with regard to two decisions of the appointing authority cited by the applicant in its application.

               2.

               Second plea in law, alleging that the order in case F-45/10 infringes European Union law as described under Article 11(1) of Annex I to the Statute of the Court of Justice of the European Union, as the applicant is entitled to compensation since harassment took place.

               3.

               Third plea in law, alleging the Civil Service Tribunal violated the right of the applicant to a hearing, as provided in Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, as well as in Article 47(2) of the Charter of Fundamental Rights of the European Union.

      (1)  Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community, as amended (OJ English special edition: Series I Chapter 1959-1962, p. 135)


C 94/38              EN                  Official Journal of the European Communities                                     28.3.98
    procedure in the present case as well as infringement           Pleas in law and main arguments adduced in support:
    of the reasonable period' rule and the principle of
    sound administration. A suspension decision may be              The applicant, a former official of the European
    validly justified only in so far as disciplinary                Parliament, seeks the annulment of a decision which, in
    proceedings are brought against the official or servant         his own view, impliedly suggests that he was responsible
    who has been suspended and pending a disciplinary               for certain financial losses.
    measure. However, in this case, the Disciplinary Board
    did not find, in its recommendation, that there had
    been serious misconduct. Moreover, an abnormally                In support of his claim he alleges, first of all, that the
    lengthy period elapsed between, on the one hand, the            disciplinary measure of 18 January 1988, on whose
    opening of the disciplinary procedure and referral to           lawfulness the Community judicature was called upon to
    the Disciplinary Board and, on the other, the opinion           rule, was based on, among other grounds, the loss of
    of the Disciplinary Board and the disciplinary decision,        supporting documents, not on the loss of cash, a
    which, five and a half months later, has still not been         disciplinary complaint which was expressly ruled out by
    adopted,                                                        the Disciplinary Board.
                                                                    The applicant considers, moreover, that the contested
Ð infringement of Article 25 of the Staff Regulations, of           decision was taken in breach of the Financial Regulation
    the right to a fair hearing and of the principle of legal       of 21 December 1977 applicable to the general budget of
    certainty. The applicant states in this regard, first, that     the European Communities. That decision is also based
    no reasons were given for the contested suspension              both on the (mis)handling of accounting concepts and on
    decision which contradicts the Disciplinary Board's             documents which are either forged or anonymous.
    finding and, secondly, that all the documents on which
    the adoption of that decision was based were not
    disclosed to him in sufficient time to allow him to             Finally, in the context of his claim for compensation, he
    make comments.                                                  also relies on the violation of a number of fundamental
                                                                    principles of law, in particular of the rights of the defence.
                                                                    In particular, the applicant criticises the defendant for
                                                                    prohibiting him from gaining access to his own file and
                                                                    for using forged or unsigned documents in the procedure
                                                                    which led to the contested decision.
Action brought on 21 January 1998 by Henri de Compte
                against European Parliament
                       (Case T-25/98)
                         (98/C 94/87)
                                                                    Action brought on 28 January 1998 by Albert Nardone
                                                                      against the Commission of the European Communities
               (Language of the case: French)
                                                                                (Case T-27/98)
                                                                                (98/C 94/88)
An action against European Parliament was brought
before the Court of First Instance of the European
Communities on 21 January 1998 by Henri de Compte,                                 (Language of the case: French)
residing at Longeville-Les-Metz, represented by Henri
Ferretti, of the Thionville Bar, with an address for service        An action against the Commission of the European
in Luxembourg at the Chambers of Guy Harles, 8Ð10 rue               Communities was brought before the Court of First
Mathias Hardt.                                                      Instance of the European Communities on 28 January
                                                                    1998 by Albert Nardone, residing at PieÂtrain (Belgium),
                                                                    represented by Georges Vandersanden and Laure Levi, of
The applicant claims that the Court should:
                                                                    the Brussels Bar, with an address for service in
                                                                    Luxembourg at Fiduciaire Myson SARL, 30 rue de Ces-
Ð annul Decision No A4-0125/97 of 10 April 1997                     sange.
    Decision giving discharge in respect of the
    implementation of the budget for the financial year             The applicant claims that the Court should:
    1995 Ð Section I Ð European Parliament/
    Ombudsman Annex' (OJ C 132/148, 28.4.1997,
    p. 148),                                                        Ð annul the decision taken by the appointing authority
                                                                        on 29 May 1997 following the request that an
                                                                        occupational disease be recognised in accordance with
Ð find the European Parliament liable for the harm                      Article 17 of the Rules on sickness insurance for
    suffered by the applicant and, accordingly, order the               officials of the European Communities and, in so far
    European Parliament to pay to him such an amount as                 as necessary, annul the implied decision rejecting the
    the Court may consider equitable,                                   complaint lodged by the applicant against that
                                                                        decision of 29 May,
Ð order the European Parliament to pay the costs,
    including those relating to the pre-litigation procedure.       Ð order the Commission to pay the costs.


title: Case C-109/07: Reference for a preliminary ruling from the Prud'homie de pêche de Martigues (France) lodged on 20.2.2007 — Jonathan Pilato v Jean-Claude Bourgault

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 95/27

         Reference for a preliminary ruling from the Prud'homie de pêche de Martigues (France) lodged on 20.2.2007 — Jonathan Pilato v Jean-Claude Bourgault
   (Case C-109/07)
   (2007/C 95/50)
   Language of the case: French
   Referring court
   Prud'homie de pêche de Martigues (France)
   Parties to the main proceedings

      Applicant: Jonathan Pilato

      Defendant: Jean-Claude Bourgault
   Questions referred

               1.

               Should Article 11a of Council Regulation (EC) No 894/97 (1) of 29 April 1997, as amended by Council Regulation (EC) No 1239/98 (2) of 8 June 1998, be interpreted as also prohibiting nets which do not drift or hardly drift by reason of a floating anchor to which they are attached?

               2.

               Is Article 11a(1) and (2) of Council Regulation (EC) No 894/97, as amended by Council Regulation (EC) No 1239/98 of 8 June 1998, valid to the extent to which:

                           a)

                           it appears to pursue a strictly environmental objective, although the legal basis on which it is founded is Article 43 of the EC Treaty (now Article 37 EC);

                           b)

                           it does not define a drift-net and therefore does not clearly define the scope of that term;

                           c)

                           it is not clearly reasoned;

                           d)

                           it does not take account of available scientific and technical data, of the environmental conditions in the various regions of the Community, or of the benefits or costs which arise from the prohibition which it establishes;

                           e)

                           it is disproportionate to the objective being pursued;

                           f)

                           it is discriminatory since it treats very different geographic, economic and social situations in the same fashion;

                           g)

                           it does not establish any exemption for small-time fishermen who fish with devices such as the ‘thonaille’, which, apart from the fact that it is traditional in the Mediterranean, is vital for that part of the population who practise it, and is, moreover, very selective?

      (1)  Council Regulation (EC) No 894/97 of 29 April 1997 laying down certain technical measures for conservation of fishery resources (OJ L 1997 132, p. 1).

      (2)  Council Regulation (EC) No 1239/98 of 8 June 1998, amending Regulation (EC) No 894/97 laying down certain technical measures for conservation of fishery resources (OJ L 1998 171, p. 1).


title: References for a preliminary ruling by the Arbeitsgericht, Wiesbaden, by orders of that court of 10, 13, 16 and 17 February 1998 in the cases of Finalarte Sociedade de Construçao Civil, Lda against Urlaubs- und Lohnausgleichskasse der Bauwirtschaft (C-49/98) and Urlaubs- und Lohnausgleichskasse der Bauwirtschaft against 1. Amilcar Oliveira Rocha (C-50/98), 2. Works in the World Srl (C-51/98), 3. Tudor Stone Ltd (C-52/98), 4. Tecnamb-Tecnologia do Ambiente, Lda (C-53/98) and 5. Turiprata Construçoes Civil, Lda (C-54/98) (Cases C-49/98, C-50/98, C-51/98, C-52/98, C-53/98 and C-54/98)

text:
2.5.98                EN                 Official Journal of the European Communities                                  C 137/9
    (b) Is it permissible for an application for an extension       6. Where the repayment criteria laid down in
        to relate not to declarations to be listed                      Article 900(1)(o) of the implementing Regulation are
        individually but instead globally to all declarations           fulfilled, can it ordinarily be assumed that the person
        to be made within a given period (in this case,                 concerned has not acted with any fraudulent intent or
        several months), where reference is made, by way                in a manner which is obviously negligent?
        of justification, to special problems existing during
        that period in the applicant's business (for                7. If question 6 and/or question 4 are to be answered in
        example, the fact that employees have suddenly                  the negative:
        fallen ill or have been absent on leave, the
                                                                        Should the term obvious negligence' in the second
        induction of new employees, problems with the
                                                                        indent of Article 239(1) of the Customs Code be
        application of a data-processing system developed
                                                                        defined according to objective and/or subjective
        for the purposes of carrying out customs
                                                                        criteria, and does it have the same meaning as the
        formalities or, in cases involving outward
                                                                        term obvious negligence' in the second indent of
        processing, the excessive work involved in the
                                                                        Article 859 of the implementing Regulation and the
        preparation of attributions which should in fact
                                                                        term manifest negligence' in Article 212a? Can no
        have been prepared by the customs authorities),
                                                                        obvious negligence' be said to exist within the
        without obvious negligence arising within the
                                                                        meaning of Article 239 of the Customs Code where
        meaning of the second indent of Article 859 on the
                                                                        customs debts on importation have been incurred
        implementing Regulation?
                                                                        pursuant to Article 204(1)(a) because, for reasons such
                                                                        as those given by way of example in question 2(b),
3. If question 1 is to be answered in the negative:
                                                                        there has been non-compliance over a period of many
                                                                        months with the time limit laid down in Article 49(1)
    Must it be assumed that the numerous instances of                   of the Customs Code and no circumstances justifying
    failure to comply in time with the obligation to assign             extensions of time existed, with the result that there
    to goods presented to customs a customs-approved                    was also obvious negligence within the meaning of the
    treatment or use are to be considered to have no                   second indent of Article 859 of the implementing
    significant effect on the correct operation of the                  Regulation?
    temporary storage or customs procedure in question'
    where such treatment or use is assigned to the goods            (1) OJ L 253, 11.10.1993, p. 1.
    after the time limit has expired and an extension of            (2) OJ L 302, 19.10.1992, p. 1.
    the time allowed for such assignment would not have             (3) OJ L 346, 31.12.1994, p. 1.
    been justified pursuant to Article 49(2) of the Customs
    Code?
4. If question 2(b) or question 3 is to be answered in the
    negative:
                                                                    References for a preliminary ruling by the Arbeitsgericht,
                                                                    Wiesbaden, by orders of that court of 10, 13, 16 and
    Is Article 900(1)(o) of the implementing Regulation, as
                                                                    17 February 1998 in the cases of Finalarte Sociedade de
    inserted by Article 1(29) of Commission Regulation
                                                                    ConstrucËao Civil, Lda against Urlaubs- und Lohnaus-
    (EC) No 3254/94 (3), concerning eligibility for
                                                                    gleichskasse der Bauwirtschaft (C-49/98) and Urlaubs-
    preferential rates or Community treatment, also
                                                                    und Lohnausgleichskasse der Bauwirtschaft against
    applicable to the grant of other forms of preferential
                                                                    1. Amilcar Oliveira Rocha (C-50/98), 2. Works in the
    tariff treatment?
                                                                    World Srl (C-51/98), 3. Tudor Stone Ltd (C-52/98),
                                                                    4. Tecnamb-Tecnologia do Ambiente, Lda (C-53/98) and
5. If question 4 is to be answered in the negative:                        5. Turiprata ConstrucËoes Civil, Lda (C-54/98)
                                                                    (Cases C-49/98, C-50/98, C-51/98, C-52/98, C-53/98 and
    Where a claim is made for repayment, are the customs
                                                                                C-54/98)
    authorities and courts required to examine of their
    own motion whether all relevant criteria for                                            (98/C 137/19)
    repayment are fulfilled, even in the event that the
    claimant expressly bases his claim for repayment on             Reference has been made to the Court of Justice of the
    one legal criterion only, thus rendering it necessary, in       European Communities by orders of the First, Fifth,
    circumstances such as those of the present case, to             Seventh and Eighth Chambers of the Arbeitsgericht
    examine whether the conditions laid down in the                 (Labour Court), Wiesbaden, of 10, 13, 16 and 17 February
    second indent of Article 239(1) of the Customs Code             1998, received at the Court Registry on 24 February
    in conjunction with the first sentence of Article 905(1)        1998, for a preliminary ruling in the cases of Finalarte
    of the implementing Regulation are fulfilled with               Sociedade de ConstrucËao Civil, Lda against Urlaubs- und
    regard to declarations for entry into free circulation in       Lohnausgleichskasse der Bauwirtschaft (Holiday and Wage
    which valid movement certificates on form EUR.1 or              Equalisation Fund of the Construction Industry) (C-49/98)
    certificates of origin on form A have been produced,            and Urlaubs- und Lohnausgleichskasse der Bauwirtschaft
    and where there exists the possibility of total or              against 1. Amilcar Oliveira Rocha (C-50/98), 2. Works in
    partial exemption from import duties of goods which             the World Srl (C-51/98), 3. Tudor Stone Ltd (C-52/98), 4.
    have been reimported following outward processing               Tecnamb-Tecnologia do Ambiente, Lda (C-53/98) and 5.
    (differential customs clearance) or goods returned              Turiprata ConstrucËoes Civil, Lda (C-54/98) on the
    following repair?                                               following questions.
 ---pagebreak--- C 137/10             EN                Official Journal of the European Communities                                      2.5.98
1. Are Articles 48, 59 and 60 of the EC Treaty to be                   provision of services (2) to be interpreted as in any
   interpreted as infringed by a provision of national law,            event, having regard to the correct interpretation of
   the first sentence of paragraph 1(3) of the Arbeitneh-              Articles 48, 59 and 60 of the EC Treaty, neither
   merentsendegesetz (Law on the Posting of Workers),                  requiring nor permitting the rules at issue in
   which extends the application of provisions of                      questions 1, 2 and 3?
   collective agreements which have been declared
   generally binding concerning the collection of                 (1) OJ L 307, 13.12.1993, p. 18.
   contributions and the grant of benefits in connection          (2) OJ L 18, 21.1.1997, p. 1.
   with workers' holiday entitlements by joint bodies of
   parties to collective agreements, and thus the
   provisions of those agreements concerning the scheme
   to be complied with in that regard, to employers
   resident abroad and their workers who have been
   posted to the area within which those collective               Reference for a preliminary ruling by the Hùjesteret by
   agreements apply?                                              order of 18 February 1998 in the case of Skatteministeriet
                                                                                v. Bent Vestergaard
2. Are Articles 48, 59 and 60 of the EC Treaty to be                                       (Case C-55/98)
   interpreted as infringed by the second sentence of                                       (98/C 137/20)
   paragraph 1(1) and the first sentence of paragraph 1(3)
   of the Arbeitnehmerentsendegesetz which result in the
   application of provisions of collective agreements             Reference has been made to the Court of Justice of the
   declared to be generally binding which:                        European Communities by order of 18 February 1998
                                                                  from the Hùjesteret (Danish Supreme Court), which was
   (a) provide for a length of leave which exceeds the            received at the Court Registry on 24 February 1998, for a
       minimum length of annual leave laid down in                preliminary ruling in the case of Skatteministeriet
       Council Directive 93/104/EC of 23 November                 (Ministry of Fiscal Affairs) v. Bent Vestergaard on the
       1993 (1) concerning certain aspects of the                 following questions.
       organisation of working time, and/or
                                                                  1. Is it in accordance with Articles 6 and 59 of the EC
   (b) allow employers resident in Germany to claim the                Treaty for Danish case-law (see the judgment of the
       reimbursement of expenditure on holiday pay and                 Hùjesteret of 19 October 1994, reproduced in
       holiday allowances from joint bodies of the parties             Ugeskrift for Retsvñsen 1994, p. 970) to apply a
       to the collective agreements whereas, in the case of            presumption that, in cases in which a course is held in
       employers resident abroad, they do not provide for              an ordinary tourist resort outside Denmark and the
       such a claim but instead for a direct claim by the              course location cannot, as such, be justified on
       posted workers against the joint bodies of the                  professional grounds, the course involves such a
       parties to the collective agreements, and/or                    significant tourism element that the costs of the course
                                                                       cannot be treated as constituting deductible operating
   (c) in connection with the social fund scheme to be                 costs?
       complied with under those collective agreements,
       impose on employers resident abroad obligations            2. If the answer is no: can the national legal position in
       to provide information to the joint bodies of the               the area of taxation be justified by reference to the
       parties to the collective agreements whereby the                case-law of the Court of Justice, in particular Case
       amount of information to be given exceeds the                   C-204/90 Bachmann v. Belgium (1) and Case C-250/95
       amount required from employers resident in                      Futura Participations and Singer v. Administration des
       Germany?                                                        Contributions (2)?
3. Are Articles 48, 59 and 60 of the EC Treaty to be              (1) Judgment of 28.1.1992, [1992] ECR I-249
   interpreted as infringed by paragraph 1(4) of the              (2) Judgment of 15.5.1997, [1997] ECR I-2471.
   Arbeitnehmerentsendegesetz under which, for the
   purposes of classifying businesses as covered by a
   collective agreement which has been declared generally
   binding and which, under the first sentence of
   paragraph 1(3) of that Law, also applies to employers
   resident abroad and their workers who have been                Appeal brought on 26 February 1998 by Associación
   posted to the area within which that collective                Telefónica de Mutualistas (ATM) against the judgment
   agreement applies, all workers posted to Germany, but          delivered on 18 December 1997 by the First Chamber,
   only those workers, are treated as a business, while a         Extended Composition, of the Court of First Instance of
   different definition of a business applies to employers        the European Communities in Case T-178/94 between
   resident in Germany which in certain cases results in          Associación Telefónica de Mutualistas (ATM) and
   different businesses falling within the field of                        Commission of the European Communities
   application of the generally binding collective                                       (Case C-57/98 P)
   agreement?
                                                                                (98/C 137/21)
4. Is Article 3(1)(b) of European Parliament and Council
   Directive 96/71/EC of 16 December 1996 concerning              An appeal against the judgment delivered on 18 December
   the posting of workers in the framework of the                 1997 by the First Chamber, Extended Composition, of the


title: Judgment of the Court (Fourth Chamber) of 21 September 2000 in Case C-124/99 (reference for a preliminary ruling from the Sozialgericht, Münster): Carl Borawitz v Landesversicherungsanstalt Westfalen (Social security for migrant workers — Equal treatment — National legislation fixing, in connection with the transfer abroad of retroactive pension payments, a higher minimum amount than that paid within the country)

text:
25.11.2000               EN                      Official Journal of the European Communities                                             C 335/9
2.    Annuls Commission Decision C (96) 1185 of 14 August                         attested acts recording a transaction covered by the directive,
      1996 reducing the assistance granted in Decision C (89) 0570                under a system where notaries are employed by the State and
      of 22 March 1989 and Commission Decision C (96) 1186 of                     the charges in question are paid in part to that State for the
      14 August 1996 reducing the assistance granted in Decision                  financing of its official business.
      C (89) 0570 of 22 March 1989;
                                                                            2.    A charge payable for drawing up a notarially attested act
3.    Orders the Commission to pay the costs of the proceedings                   recording an increase in the share capital or an amendment to
      before both the Court of First Instance and the Court of Justice.           the statutes of a capital company is, where it amounts to a tax
                                                                                for the purposes of Directive 69/335, as amended by Directive
                                                                                85/303, in principle prohibited under Article 10(c) thereof.
(1) OJ C 71 of 13.3.1999.
                                                                            3.    ‘Fees or dues’ within the meaning of Article 12(1)(e) of Directive
                                                                                69/335, as amended by Directive 85/303, do not cover a
                                                                                charge collected for drawing up a notarially attested act
                                                                                recording an increase in the share capital or an amendment to
                                                                                the statutes of a capital company, such as the charge at issue in
                                                                                the main proceedings, the amount of which increases in direct
                                                                                proportion to the share capital raised and in respect of which
                  JUDGMENT OF THE COURT                                           there is no upper limit.
                                                                            4.    Article 10 of Directive 69/335, as amended by Directive
                         (Fourth Chamber)                                         85/303, creates rights on which individuals may rely in
                                                                                proceedings before the national courts.
                      of 21 September 2000
                                                                            (1) OJ C 86 of 27.3.1999.
in Case C-19/99 (reference for a preliminary ruling from
the Supremo Tribunal Administrativo): Modelo Continen-
                te SGPS SA v Fazenda Pública (1)
(Directive 69/335/EEC — Indirect taxes on the raising of
capital — Charge for drawing up a notarially attested act                                     JUDGMENT OF THE COURT
recording an increase in the share capital of a capital
          company and an amendment to its statutes)                                                   (Fourth Chamber)
                                                                                of 21 September 2000
                           (2000/C 335/16)
                                                                            in Case C-124/99 (reference for a preliminary ruling from
                                                                            the Sozialgericht, Münster): Carl Borawitz v Landesver-
                  (Language of the case: Portuguese)                                         sicherungsanstalt Westfalen (1)
                                                                            (Social security for migrant workers — Equal treatment —
(Provisional translation; the definitive translation will be published      National legislation fixing, in connection with the transfer
                    in the European Court Reports)                          abroad of retroactive pension payments, a higher minimum
                                                                                amount than that paid within the country)
In Case C-19/99: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Supremo Tribunal                                            (2000/C 335/17)
Administrativo, Portugal, for a preliminary ruling in the
proceedings pending before that court between Modelo Conti-
                                                                                (Language of the case: German)
nente SGPS SA and Fazenda Pública, in the presence of
Ministério Público — on the interpretation of Articles 4(3), 10
and 12(1)(e) of Council Directive 69/335/EEC of 17 July 1969                (Provisional translation; the definitive translation will be published
concerning indirect taxes on the raising of capital (OJ, English                                 in the European Court Reports)
Special Edition 1969 (II), p. 412), as amended by Council
Directive 85/303/EEC of 10 June 1985 (OJ 1985 L 156, p. 23)                 In Case C-124/99: reference to the Court under Article 177 of
— the Court (Fourth Chamber), composed of: D.A.O. Edward,                   the EC Treaty (now Article 234 EC) from the Sozialgericht,
President of the Chamber, P.J.G. Kapteyn and H. Ragnemalm                   Münster, Germany, for a preliminary ruling in the proceedings
(Rapporteur), Judges; G. Cosmas, Advocate General; R. Grass,                pending before that court between Carl Borawitz and Landes-
Registrar, has given a judgment on 21 September 2000, in                    versicherungsanstalt Westfalen, joined party: Bundesrepublik
which it has ruled:                                                         Deutschland — on the interpretation of Community law in
                                                                            matters of social security, in particular the principle of equal
1.    Council Directive 69/335/EEC of 17 July 1969 concerning               treatment — the Court (Fourth Chamber), composed of:
      indirect taxes on the raising of capital, as amended by Council       D.A.O. Edward (Rapporteur), President of the Chamber, P.J.G.
      Directive 85/303/EEC of 10 June 1985, must be interpreted             Kapteyn and A. La Pergola, Judges; P. Léger, Advocate General;
      as meaning that charges constitute taxes for the purposes of the      R. Grass, Registrar, has given a judgment on 21 September
      directive where they are collected for drawing up notarially          2000, in which it has ruled:
 ---pagebreak--- C 335/10                 EN                     Official Journal of the European Communities                                        25.11.2000
The principle of equal treatment, as laid down in Article 3(1) of          The Combined Nomenclature as set out in Annex 1 of Commission
Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on              Regulation (EEC) No 3174/88 of 21 September 1988 amending
the application of social security schemes to employed persons, to self-   Annex I to Council Regulation (EEC) No 2658/87 on the tariff and
employed persons and to members of their families moving within            statistical nomenclature and on the Common Customs Tariff is to be
the Community, as amended by Council Regulation (EEC) No                   interpreted as meaning that a product made by adding rennet to
1945/93 of 30 June 1993, precludes national legislation which              skimmed milk and made up of 54 % water, 0,9 % fat, 5,7 %
fixes the minimum amount of a cash benefit that can be paid to a           phosphorous and 2 % salt and casein must be classified under tariff
Community national residing in another Member State at a higher            subheading 0406 90 11‘Other cheese: — For processing’.
level than that required where that payment is made within the same
Member State, in circumstances where the payment to be sent to
another Member State does not involve expenses higher than those           (1) OJ C 100 of 10.4.1999.
incurred in respect of the payment of the same benefit within the first
Member State.
(1) OJ C 174 of 19.6.1999.
                                                                                JUDGMENT OF THE COURT
                                                                                of 26 September 2000
                  JUDGMENT OF THE COURT
                           (Fifth Chamber)                                 in Case C-205/98: Commission of the European Communi-
                                                                                ties v Republic of Austria (1)
                      of 26 September 2000
                                                                           (Failure of a Member State to fulfil obligations — Directive
in Case C-42/99 (reference for a preliminary ruling from                   93/89/EEC — Tolls — Brenner motorway — Prohibition of
the Supremo Tribunal Administrativo, Portugal): Fábrica                   discrimination — Obligation to set toll rates by reference to
de Queijo Eru Portuguesa Ld.a v Tribunal Técnico                                  the costs of the infrastructure network concerned)
              Aduaneiro de Segunda Instância (1)
                                                                                (2000/C 335/19)
(Free movement of goods — Common Customs Tariff —
Tariff heading — Cheese or casein — Regulation (EEC) No
                               3174/88)                                                        (Language of the case: Dutch)
                           (2000/C 335/18)
                                                                           (Provisional translation; the definitive translation will be published
                  (Language of the case: Portuguese)                                          in the European Court Reports)
                                                                           In Case C-205/98: Commission of the European Communities
(Provisional translation; the definitive translation will be published     (Agents: L. Pignataro and A. Buschmann) v Republic of Austria
                    in the European Court Reports)                         (Agents: H. Dossi) — application for a declaration that, by
                                                                           raising from 1 July 1995 and from 1 February 1996 the tolls
In Case C-42/99: reference to the Court under Article 177 of               for the whole Brenner motorway, a transit route through
the EC Treaty (now Article 234 EC) from the Supremo                        Austria used predominantly by goods vehicles of over 12
Tribunal Administrativo (Supreme Administrative Court) for a               tonnes from other Member States, and by not imposing the
preliminary ruling in the proceedings pending before that                  said tolls only to cover the costs of constructing, operating
court between Fábrica de Queijo Eru Portuguesa Ld.a and                   and developing the Brenner motorway, the Republic of Austria
Tribunal Técnico Aduaneiro de Segunda Instância in the                     has failed to fulfil its obligations under Article 7(b) and Article
presence of: Ministério Público — on the interpretation of the            7(h) of Council Directive 93/89/EEC of 25 October 1993 on
Combined Nomenclature as set out in Annex I of Commission                  the application by Member States of taxes on certain vehicles
Regulation (EEC) No 3174/88 of 21 September 1988                           used for the carriage of goods by road and tolls and charges
amending Annex I to Council Regulation (EEC) No 2658/87                    for the use of certain infrastructures (OJ 1993 L 279, p. 32) —
on the tariff and statistical nomenclature and on the Common               the Court, composed of: G.C. Rodrı́guez Iglesias, President,
Customs Tariff (OJ 1988 L 298 p. 1) — the Court (Fifth                     J.C. Moitinho de Almeida (Rapporteur), L. Sevón, R. Schintgen
Chamber), composed of: D.A.O. Edward, President of the                     (Presidents of Chambers), P.J.G. Kapteyn, C. Gulmann,
Chamber, L. Sevón, P.J.G. Kapteyn, H. Ragnemalm (Rappor-                  J.-P. Puissochet, P. Jann, M. Wathelet, V. Skouris and F. Macken,
teur) and M. Wathelet, Judges; N. Fennelly, Advocate General;              Judges; A. Saggio, Advocate General; H.A. Rühl, Principal
H.A. Rühl, Principal Administrator, for the Registrar, has given           Administrator, for the Registrar, has given a judgment on
a judgment on 26 September 2000, in which it has ruled:                    26 September 2000, in which it:


title: Case C-188/06 P: Order of the Court of 9 March 2007 — Schneider Electric SA v Commission of the European Communities (Appeals — Concentrations between undertakings — Electricity distribution market — Decisions to initiate and close proceedings)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 96/22

         Order of the Court of 9 March 2007 — Schneider Electric SA v Commission of the European Communities
   (Case C-188/06 P) (1)

   (Appeals - Concentrations between undertakings - Electricity distribution market - Decisions to initiate and close proceedings)
   (2007/C 96/39)
   Language of the case: French
   Parties

      Applicant: Schneider Electric SA (represented by: A. Winckler, I. Girgenson and M. Pittie, avocats)

      Other party to the proceedings: Commission of the European Communities (represented by: A. Bouquet and O. Beynet, as Agents)
   Re:
   Appeal brought against the Order of the Court of First Instance (Fourth Chamber) of 31 January 2006 in Case T-48/03 Schneider Electric SA v Commission, rejecting as inadmissible an application for annulment of the Commission's Decision of 4 December 2002 to initiate a detailed examination of the concentration between Schneider and Legrand (Case COMP/M.2283 — Schneider/Legrand II) and of the Commission's Decision of 13 December 2002 to close the proceedings examining the concentration.
   Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Schneider Electric SA is ordered to pay the costs.

      (1)  OJ C 165, 15.7.2006.


title: Case C-317/03: Reference for a preliminary ruling by the Oberverwaltungsgericht für das Land Nordrhein-Westfalen by order of that Court of 7 July 2003 in the administrative proceedings between Orthica BV against Bundesrepublik Deutschland, represented by the Federal Ministry of Consumer Protection, Nutrition and Agriculture; Intervener: the representative of the public interest at the Oberverwaltungsgericht für das Land Nordrhein-Westfalen

text:
15.11.2003            EN                         Official Journal of the European Union                                           C 275/27
           products analogously? If not, can the German State,                2.    If the Court of Justice concludes that the product in
           without thereby infringing Community law, evade                          question is medicinal, but that in those Member
           an obligation which a German court intends to                            States where it has hitherto been regarded as a
           impose on it to adopt a decision of general appli-                       foodstuff it should continue to be a foodstuff, that
           cation under Paragraph 47a of the LMBG (applied                          raises problems for the referring Chamber such as
           analogously) if it, or the authority responsible for                     those underlying the questions in B VI, in conjunc-
           food but not medicines, objects that because in                          tion with those in B III. Reference is made to those
           the German classification system the product is                          questions and the observations thereon and an
           medicinal no decision of general application under                       answer is requested.
           Paragraph 47a of the LMBG (analogously) may be
           adopted,                                                      B.   In the event that — as has been the case hitherto — the
                                                                              questions posed in section A above are to be answered
           a)    because the body competent to adopt decisions                not by the Court of Justice but by the national courts, the
                 of general application under Paragraph 47a of                replies are, in this Chamber’s view, needed to the
                 the LMBG is not competent for medicines also,                following questions:
           b)    because the product is not authorised as a                   I.    a)    Is the contested product to be classified accord-
                 medicine?                                                                ing to the first and second paragraphs of
                                                                                Article 2, in conjunction with point (d) of the
      VII. If the Court declines itself to reply to the questions                         third paragraph of Article 2 of Regulation (EC)
           posed in section A, may the national court then                                No 178/2002 of the European Parliament and
           direct questions on the classification of products or                          of the Council of 28 January 2002 laying down
           indeed scientific or methodological questions to the                           the general principles and requirements of food
           European Food Authority and to what extent are                                 law, establishing the European Food Safety
           any guidelines provided by that authority binding                              Authority and laying down procedures in mat-
           on the national court?                                                         ters of food safety (OJ 2002 L 31, p. 1, ‘the
                                                                                Basic Regulation’), or — once the period for
                                                                                transposition expires on 31 July 2003 —
                                                                                according to Directive 2002/46/EC of the
                                                                                European Parliament and of the Council of
                                                                                10 June 2002 on the approximation of the
Reference for a preliminary ruling by the Oberverwal-                                     laws of the Member States relating to food
tungsgericht für das Land Nordrhein-Westfalen by order                                    supplements (OJ 2002 L 183, p. 51, ‘the Food
of that Court of 7 July 2003 in the administrative                                        Supplements Directive’), and if so according to
proceedings between Orthica BV against Bundesrepublik                                     which parts of the directive?
Deutschland, represented by the Federal Ministry of
Consumer Protection, Nutrition and Agriculture; Inter-                              b)    If the first and second paragraphs of Article 2,
vener: the representative of the public interest at the                                   in conjunction with point (d) of the third
Oberverwaltungsgericht für das Land Nordrhein-                                            paragraph of Article 2 of the Basic Regulation
                           Westfalen                                                      applies, the following question arises: is it the
                                                                                case that it is no longer the product’s main
                        (Case C-317/03)                                                   (objective) purpose that is the decisive factor,
                                                                                but rather that a product which meets the
                        (2003/C 275/43)                                                   criteria for both a food and a medicine is,
                                                                                legally speaking, always — and only — a
                                                                                medicinal product? How material for these
Reference has been made to the Court of Justice of the                                    purposes is the type of product and how
European Communities by order of the Oberverwaltungsge-                                   material the individual product?
richt für das Land Nordrhein-Westfalen (Higher Administrative
Court for the Land of Nordrhein-Westfalen) of 7 July 2003,                    II.   a)    How is the term ‘pharmacological effect’, which
received at the Court Registry on 24 July 2003, for a                                     is critical for the purposes of classification,
preliminary ruling in the administrative proceedings between                              inter alia, under the first and second paragraphs
Orthica BV against Bundesrepublik Deutschland, represented                                of Article 2, in conjunction with point (d) of
by the Federal Ministry of Consumer Protection, Nutrition and                             the third paragraph of Article 2 of the Basic
Agriculture; Intervener: the representative of the public interest                        Regulation, to be defined for the purposes
at the Oberverwaltungsgericht für das Land Nordrhein-                                     of Community law? In particular, does the
Westfalen on the following questions:                                                     definition include a requirement that there be a
                                                                                health risk?
A.    1.   Is the contested product
                                                                                b)    Now that Directive 2001/83/EC of the Euro-
           ‘Acid Free C-1000’                                                             pean Parliament and of the Council of 6 Nov-
                                                                                ember 2001 on the Community code relating
           a foodstuff (perhaps in the form of a food sup-                                to medicinal products for human use has,
           plement) or a medicinal product? Is this finding                               by the second sentence of Article 1(2) (on
           binding on all the Member States?                                              ‘functional’ medicinal products), introduced the
 ---pagebreak--- C 275/28             EN                         Official Journal of the European Union                                        15.11.2003
              term ‘physiological functions’, the further ques-                    Articles 28 and 30 EC, not to apply the rule in
              tion arises as to the meaning of that term and                       Paragraph 47a of the LMBG to such medicinal
              its relation to the term ‘pharmacological effect’.                   products analogously? If not, can the German State,
                                                                                without thereby infringing Community law, evade
                                                                                an obligation which a German court intends to
    III. Does the view expressed by the Court of Justice in                        impose on it to adopt a decision of general appli-
         Case 227/82 van Bennekom [1983] ECR 3883,                                 cation under Paragraph 47a of the LMBG (applied
         paragraph 39 on the general classification of vitamin                     analogously) if it, or the authority responsible for
         preparations, in which it said that it must be possible                   food but not medicines, objects that because in
         to import a product that may be marketed as a food                        the German classification system the product is
         in the Member State in which it was manufactured                          medicinal no decision of general application under
         by the granting of a marketing authorisation if, even                     Paragraph 47a of the LMBG (analogously) may be
         though it is regarded as a medicine in the Member                         adopted,
         State of import, a marketing authorisation is com-
         patible with the requirements of health protection,
         also apply to the product at issue here, and does the                     a)    because the body competent to adopt decisions
         Court of Justice adhere to its view in the light of                             of general application under Paragraph 47a of
         subsequent Community law?                                                       the LMBG is not competent for medicines also,
                                                                                b)    because the product is not authorised as a
    IV. a)    In so far as the term ‘health risk’ is relevant to                         medicine?
              the questions in sections II or III, or to other
              applicable Community law, such as Articles 28                   VII. If the Court declines itself to reply to the questions
              and 30 EC: Is the relevant threshold the ‘upper
                                                                                posed in section A, may the national court then
              safe level’ or should it be reduced, say, because
                                                                                direct questions on the classification of products or
              the substances in question are also ingested
                                                                                indeed scientific or methodological questions to the
              with food and/or because — at least where                            European Food Authority and to what extent are
              they are taken long-term — regard may have
                                                                                any guidelines provided by that authority binding
              to be had to the various consumer groups and
                                                                                on the national court?
              their different sensitivities? How are the words
              ‘reference intakes for the population’ within the
              meaning of Article 5 of the Food Supplements
              Directive to be defined?
         b)   Is it an infringement of Community law for the
              specialist authorities to have a discretion under
              national law to determine (individual) upper              Reference for a preliminary ruling by the Oberverwal-
              safe levels and any (individual) reductions that          tungsgericht für das Land Nordrhein-Westfalen by order
              is subject to only limited review by the courts?          of that Court of 8 July 2003 in the administrative
                                                                        proceedings between Orthica BV against Bundesrepublik
    V.   a)   If a product may be marketed in at least one              Deutschland, represented by the Federal Ministry of
              other Member State as a foodstuff, is the fact            Consumer Protection, Nutrition and Agriculture; Inter-
              that there is no ‘nutritional need’ for that              vener: the representative of the public interest at the
              product in Germany significant in terms of the            Oberverwaltungsgericht für das Land Nordrhein-
              freedom to market the product in Germany?                                            Westfalen
         b)   If so, is it compatible with Community law                                        (Case C-318/03)
              for the authority to have a discretion under
              national law that is subject to only limited                                      (2003/C 275/44)
              review by the courts?
    VI. If in regard to the questions posed in section III the
         Court confirms the judgment in van Bennekom and                Reference has been made to the Court of Justice of the
         there is no incompatibility in this case with the              European Communities by order of the Oberverwaltungsge-
         requirements of health protection, how can the                 richt für das Land Nordrhein-Westfalen (Higher Administrative
         request for marketing authorisation be successfully            Court for the Land of Nordrhein-Westfalen) of 8 July 2003,
         pursued? Can a decision of general application under           received at the Court Registry on 24 July 2003, for a
         Paragraph 47a of the LMBG be refused, without                  preliminary ruling in the administrative proceedings between
         Community law being infringed, on the basis that               Orthica BV against Bundesrepublik Deutschland, represented
         in the German classification system a product is               by the Federal Ministry of Consumer Protection, Nutrition and
         medicinal, whereas it can be marketed as a foodstuff           Agriculture; Intervener: the representative of the public interest
         in the Member State where it was manufactured? Is              at the Oberverwaltungsgericht für das Land Nordrhein-
         it compatible with Community law, and in particular            Westfalen on the following questions: