title: Judgment of the Court (Fifth Chamber) of 18 October 2001 in Case C-354/99: Commission of the European Communities v Ireland (Failure to fulfil obligations — Directive 86/609/EEC — Incomplete implementation)

text:
C 348/2                  EN                      Official Journal of the European Communities                                         8.12.2001
6 October 1997 (OJ 1997 L 290, p. 18) — the Court,                          d’arrondissement de Luxembourg (Luxembourg) for a prelimi-
composed of: P. Jann, President of the Chamber,                             nary ruling in the proceedings pending before that court
D.A.O. Edward, A. La Pergola, L. Sevón (Rapporteur) and                    between Christiane Adam, épouse Urbing and Administration
M. Wathelet, Judges; P. Léger, Advocate General; H.A. Rühl,                 de l’enregistrement et des domaines — on the interpretation
Principal Administrator, for the Registrar, has given a judgment            of Annex F(2) of the Sixth Council Directive (77/388/EEC) of
on 25 October 2001, in which it has ruled:                                  17 May 1977 on the harmonisation of the laws of the Member
                                                                            States relating to turnover taxes — Common system of value
1.    On a proper construction of Articles 2(2a) and 3a(1)(c)               added tax: uniform basis of assessment (OJ 1977 L 145, p. 1)
      of Council Directive 84/450/EEC of 10 September 1984                  — the Court (Second Chamber), composed of: N. Colneric,
      concerning misleading and comparative advertising, as amended         President of the Chamber, V. Skouris (Rapporteur) and
      by Directive 97/55/EC of the European Parliament and of the           J.N. Cunha Rodrigues, Judges; A. Tizzano, Advocate General;
      Council of 6 October 1997, the indication, in the catalogue of        R. Grass, Registrar, has given a judgment on 11 October 2001,
      a supplier of spare parts and consumable items suitable for the       in which it has ruled:
      products of an equipment manufacturer, of product numbers
      (OEM numbers) by which the equipment manufacturer desig-              It is for each Member State to determine and define the transactions
      nates the spare parts and consumable items which he himself           to which may be applied a reduced rate under Article 12(4) of the
      sells may constitute comparative advertising which objectively        Sixth Council Directive (77/388/EEC) of 17 May 1977 on the
      compares one or more material, relevant, verifiable and represen-     harmonisation of the laws of the Member States relating to turnover
      tative features of goods.                                             taxes — Common system of value added tax: uniform basis of
2.    On a proper construction of Article 3a(1) (g) of Directive            assessment, until 31 December 1992, and under Article 28(2)(e) of
      84/450/EEC as amended by Directive 97/55/EC, where                    that Directive as amended by Council Directive 92/77/EEC of
      product numbers (OEM numbers) of an equipment manufac-                19 October 1992 supplementing the common system of value added
      turer are, as such, distinguishing marks within the meaning of        tax and amending Directive 77/388/EEC (approximation of VAT
      that provision, their use in the catalogues of a competing            rates), as from 1 January 1993, subject to the necessity to respect the
      supplier enables him to take unfair advantage of the reputation       principle of neutrality of the value added tax.
      attached to those marks only if the effect of the reference to
      them is to create, in the mind of the persons at whom the             The liberal professions mentioned in Annex F(2) to the Sixth
      advertising is directed, an association between the manufacturer      Directive 77/388/EEC are activities which involve a marked intellec-
      whose products are identified and the competing supplier, in          tual character, require a high-level qualification and are usually
      that those persons associate the reputation of the manufacturer’s     subject to clear and strict professional regulation. In the exercise of
      products with the products of the competing supplier. In order        such an activity, the personal element is of special importance and
      to determine whether that condition is satisfied, account should      such exercise always involves a large measure of independence in the
      be taken of the overall presentation of the advertising at issue      accomplishment of the professional activities.
      and the type of persons for whom the advertising is intended.
(1) OJ C 188 of 3.7.1998.                                                   (1) OJ C 281 of 2.10.1999.
                  JUDGMENT OF THE COURT
                         (Second Chamber)                                                     JUDGMENT OF THE COURT
                         of 11 October 2001                                                            (Fifth Chamber)
in Case C-267/99 (reference for a preliminary ruling
                                                                                of 18 October 2001
from the Tribunal d’arrondissement de Luxembourg):
Christiane Adam, épouse Urbing v Administration de
               l’enregistrement et des domaines (1)                         in Case C-354/99: Commission of the European Communi-
                                                                                ties v Ireland (1)
(Sixth VAT directive — Concept of liberal profession —
         Managing agent of buildings in co-ownership)                       (Failure to fulfil obligations — Directive 86/609/EEC —
                                                                                Incomplete implementation)
                           (2001/C 348/03)
                     (Language of the case: French)                                                    (2001/C 348/04)
(Provisional translation; the definitive translation will be published                          (Language of the case: English)
                    in the European Court Reports)
In Case C-267/99: reference to the Court under Article 177 of               In Case C-354/99: Commission of the European Communities
the EC Treaty (now Article 234 EC) from the Tribunal                        (Agent: R. Wainwright) v Ireland (Agents: initially M.A. Buck-
 ---pagebreak--- 8.12.2001                 EN                     Official Journal of the European Communities                                             C 348/3
ley, and subsequently L.A. Farrell) — application for a declar-             (Germany) for a preliminary ruling in the proceedings pending
ation that, by failing to take all the measures necessary to                before that court between Pensionskasse für die Angestellten
ensure the correct implementation of Articles 2(d), 11 and 12               der Barmer Ersatzkasse VVaG and Hans Menauer — the
of Council Directive 86/609/EEC of 24 November 1986 on                      interpretation of Article 119 of the EC Treaty (Articles 117 to
the approximation of the laws, regulations and administrative               120 of the EC Treaty have been replaced by Articles 136 EC
provisions of the Member States regarding the protection of                 to 143 EC) — the Court (Sixth Chamber), composed of:
animals used for experimental and other scientific purposes                 F. Macken, President of the Chamber, N. Colneric, C. Gulmann,
(OJ 1986 L 358, p. 1) and by failing to provide for an adequate             J.-P. Puissochet and V. Skouris (Rapporteur), Judges; A. Tiz-
system of penalties for non-compliance with the requirements                zano, Advocate General; R. Grass, Registrar, has given a
of Directive 86/609/EEC, Ireland has failed to comply with the              judgment on 9 October 2001, in which it has ruled:
Directive, in particular Article 25 thereof, and has failed to
fulfil its obligations under the EC Treaty, in particular Article 5         Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty
thereof (now Article 10 EC) — the Court (Fifth Chamber),                    have been replaced by Articles 136 EC to 143 EC) must be
composed of: P. Jann, President of the Chamber, S. von Bahr,                interpreted to the effect that bodies such as German pension
D.A.O. Edward, A. La Pergola (Rapporteur) and C.W.A. Tim-                   funds (‘Pensionskassen’) entrusted with providing benefits under an
mermans, Judges; L.A. Geelhoed, Advocate General; R. Grass,                 occupational pension scheme are required to ensure equal treatment
for the Registrar, has given a judgment on 18 October 2001,                 between men and women, even if the employees discriminated against
the operative part of which is as follows:                                  on the basis of sex have, as against those directly liable, namely their
                                                                            employers in their capacity as parties to their employment contracts,
1.     By failing to adopt all the measures necessary to ensure the         a protected right in the event of insolvency that excludes all
       correct implementation of Articles 2(d), 11 and 12 of                discrimination.
       Council Directive 86/609/EEC of 24 November 1986 on the
       approximation of the laws, regulations and administrative
       provisions of the Member States regarding the protection of          (1) OJ C 366 of 18.12.1999.
       animals used for experimental and other scientific purposes,
       and by failing to provide for an adequate system of penalties for
       non-compliance with the requirements of Directive
       86/609/EEC, Ireland has failed to fulfil its obligations under
       the Directive, in particular Article 25 thereof, and under the
       EC Treaty, in particular Article 5 thereof (now Article 10 EC);
2.     Ireland is ordered to pay the costs.                                                   JUDGMENT OF THE COURT
(1) OJ C 352 of 4.12.1999.                                                                            (Sixth Chamber)
                                                                                of 16 October 2001
                                                                            in Joined Cases C-396/99 and C-397/99: Commission of
                   JUDGMENT OF THE COURT                                         the European Communities v Hellenic Republic (1)
                           (Sixth Chamber)
                                                                            (Failure by a Member State to fulfil its obligations —
                          of 9 October 2001                                 Directives 90/388/EEC and 96/2/EC — Market for telecom-
                                                                            munications services — Mobile and personal communi-
in Case C-379/99 (reference for a preliminary ruling                                                       cations)
from the Bundesarbeitsgericht): Pensionskasse für die
Angestellten der Barmer Ersatzkasse VVaG v Hans Menau-                                                 (2001/C 348/06)
                                  er (1)
(Equal pay for men and women — Occupational pensions                                             (Language of the case: Greek)
— Pension funds entrusted with carrying out the employer’s
obligation as regards payment of a supplementary pension —                  (Provisional translation; the definitive translation will be published
                          Survivor’s pension)                                                   in the European Court Reports)
                            (2001/C 348/05)
                     (Language of the case: German)                         In Joined Cases C-396/99 and C-397/99: Commission of the
                                                                            European Communities (Agents: B. Doherty and D. Triantafyl-
(Provisional translation; the definitive translation will be published      lou) v Hellenic Republic (Agents: N. Dafniou and S. Chala) —
                     in the European Court Reports)                         application for a declaration that, by failing to take, within the
                                                                            prescribed period, all the measures necessary to comply with
                                                                            Article 2(1) (Case C-396/99) and Article 2(2) (Case C-397/99)
In Case C-379/99: reference to the Court under Article 234                  of Commission Directive 96/2/EC of 16 January 1996
EC from the Bundesarbeitsgericht (Federal Labour Court)                     amending Directive 90/388/EEC with regard to mobile and


title: Action brought on 22 February 1995 by The Rugby Group plc against the Commission of the European Communities (Case T-53/95)

text:
13 . 5 . 95           EN                 Official Journal of the European Communities                                No C 119/17
9 . Breach of the principle of proportionality.                          7. A new objection, not contained in the Statement of
                                                                              Objections, was made;
(M OJ No L 343 , 30 . 12 . 1994, p . 1 .
                                                                         8 . Irregular consulting of the Advisory Committee.
                                                                     II. Errors in interpreting the evidence available and
                                                                         undervaluation of the evidence favourable to the
                                                                         applicant:
    Action brought on 22 February 1995 by Comparua
     Valenciana de Cementos Portland SA against the                      1 , as regards the so-called 'Cembureau Agreement',
          Commission of the European Communities                              the Decision failed to take account of the fact that
                        ( Case T-52/95 )                                      the applicant is not a member of 'Cembureau';
                          95/C 119/38
                                                                         2 , as regards the participation of the applicant in the
                                                                              'European     Export     Policy   Committee',      the
                (Language of tbe case: Spanish)                               Commission      failed  to   take  account    of the
                                                                              non-participation of the applicant as from 1986,
An action against the Commission of the European                              when it began to concentrate all its exports in the
Communities was brought before the Court of First                             USA; neither did it demonstrate the connection
Instance on 22 February 1995 by Compania Valenciana de                        between cooperation for exporting to non-member
Cementos Portland SA, represented by Santiago Martinez                        countries and the rule of respecting national
Lage and Jaime Pérez-Bustarnente Kôster, of the Madrid                        markets;
Bar, with an address for service in Luxembourg at the
Chambers of Aloyse May, 31 Grand Rue,                                    3 , as regards the applicant's participation in the
                                                                              'White Cement Committee ', the Decision failed to
                                                                              take into account the fact that there is no evidence
The applicant claims that the Court should :                                  whatsoever that the meetings at which the
                                                                              applicant was present adopted or applied any
— declare in whole or in part Articles 1 to 11 of                             rule of respecting national markets and that
    Commission Decision 94/815/EC of 30 November 1994
                                                                              cooperation between the members of the
    to be void as far as the applicant is concerned,                          Committee did not give rise, at least in so far as the
                                                                              applicant is concerned, to any solidarity.
— in the alternative, alter Articles 9 and 10 of the
    aforementioned Decision so as to reduce the amount of
    the fine imposed on Compania Valenciana, and                    III. Misapplication of Article 85 of the EC Treaty to the
                                                                         facts in issue through the finding that, through
— order the Commission to pay the costs .                                cooperation over exports to non-member countries,
                                                                         the supply of Community production surpluses was
                                                                         hindered, without the effect on Community trade as a
Pleas in law and main arguments adduced in support:
                                                                         result of such cooperation being established.
The applicant relies upon the following grounds:
                                                                    IV. As regards the fine, the applicant argues that its amount
  I. Breach of essential procedural requirements during                  is excessive since the Decision failed to take into
      examination of the file before the Commission and                  account the mitigating circumstances in its favour
      once the Decision was adopted . Those defects, which               which would have justified a significantly reduced
      prevented the applicant from defending itself                      fine .
      adequately against the objections raised against it, are
      as follows :
      1 . Improper notification of the decision;
      2 . The objections raised were not sufficiently
           precise;                                                    Action brought on 22 February 1995 by The Rugby
                                                                        Group pic against the Commission of the European
                                                                                Communities
      3 . Inadequate notification of the Statement of
           Objections and inadequate access to the file;                                   (Case T-53/95 )
                                                                                ( 95/C 119/39 )
     4. Absence of a real table of documents;
      5 . Breach of the fundamental right to the heard;                            (Language of the case: English)
      6 . Absence of a complete translation of the Statement       An action against the Commission of the European
           of Objections, the documents cited therein and the       Communities was brought before the Court of First
           minutes of the hearing;                                  Instance of the European Communities on 22 February by
 ---pagebreak--- No C 119/18           EN                 Official Journal of the European Communities                                   13 . 5 . 95
The Rugby Group pic, represented by Ms Lynda Martin                     Rugby was not given an opportunity to comment on the
Alegi and Mr Jacques Bourgeois with an address for service               Commission's legal case against it.
in Luxembourg at the chambers of Loesch & Wolter, 1 1 , rue
Goethe, L-1637 Luxembourg.                                              The Commission did not give Rugby an opportunity to
                                                                        comment on crucial aspects of the Commission's
The applicant claims that the Court should :                            analysis of economic issues .
— annul Articles 1 , 2, 4, 8 and 9 of the Commission                    The separation of the national from the international
    Decision of 30 November 1994 relating to a proceeding               chapters of the Statement of Objections was improper
    under Article 85 of the EC Treaty ( Cases IV/33.126 and             and has impeded Rugby's defence .
    IV/33.322 — Cement) in so far as they pertain to The
    Rugby Group pic,                                                    The Commission failed adequately to individualise and
                                                                        identify the objections against Rugby in the Statement of
— subsidiarily, modify Article 9 of the Decision as it                  Objections and failed to establish in the Decision
    pertains to The Rugby Group pic so as to annul or                   Rugby's individual participation in the alleged
    substantially reduce the fine imposed on The Rugby                  violations .
    Group pic therein, and
                                                                        The Decision holds Rugby responsible so far as the fines
— an order that the Commission pay all of the costs
    incurred by The Rugby Group pic.                                    are concerned for matters concerning bilateral relations
                                                                        of which Rugby was not accused in the Statement of
                                                                        Objections .
Pleas in law and main arguments adduced in support:
                                                                        Rugby was denied access to clearly exculpatory material
The grounds relied upon by Rugby in this appeal are :                   concerning the proposed Belgian/Dutch basing-point
                                                                        system .
1 . Infringement by the Commission ofArticle 85 of the EC
    Treaty and rules of law relating to its application
                                                                    4. Annulment or reduction of the fine
    The Commission improperly assessed the facts
    concerning Rugby's responsibility for the alleged                   As a subsidiary demand, Rugby requests that the fine
    Cembureau agreement and concerning the Two                          imposed on Rugby be annulled or substantially
    Shiploads:                                                          reduced .
    — by seeking to extend liability for indirect
        participation to 'Guilt by membership',
    — in concluding that the various alleged infringements
        constitute a 'single and continuous agreement',
        and
                                                                    Action brought on 22 February 1995 by British Cement
    — by failing properly to consider the duration of               Association against the Commission of the European
        Rugby's alleged individual participation.                                             Communities
                                                                                (Case T-54/95 )
2 . Inadequate reasoning of the Decision                                                     ( 95/C 119/40 )
3 . Infringement of essential procedural requirements                              (Language of the case: English)
    The Commission withheld from Rugby exculpatory
    documents .                                                     An action against the Commission of the European
                                                                    Communities was brought before the Court of First
    The Commission relies in the Decision against Rugby on          Instance of the European Communities on 22 February
    a document, which was not made available to Rugby               1995 by British Cement Association, represented by
    during the administrative proceedings and which is              Mr Kenneth Parker, Mr Robert Tudway and Ms Dorcas
    incompletely quoted in the Decision.                            Rogers with an address for service in Luxembourg at the
                                                                    chambers of Arendt & Medernach, Boîte Postale 39 ,
    The procedure was abandoned and closed as regards the           L-2010 Luxembourg.
    Two Shiploads by the Commission's letter of
    27 September 1993 and the Commission is therefore not
    entitled to base its Decision on that incident .                The applicant claims that the Court should:
    The allegations in the Statement of Objections were not         — annul the Commission's Decision of 30 November 1994
    sufficiently precise to cover Rugby's alleged involvement           in so far at it relates to the Applicant, and
    with the Two Shiploads and did not give Rugby an
    adequate opportunity to defend itself in this respect.          — order the Commission to pay the applicant's costs .


title: Order of the Court of First Instance of 14 June 2002 in Case T-179/99: Sud Pesca SpA v Commission of the European Communities (Common customs tariff — Failure to proceed to post-clearance recovery of import duties — Refund of import duties — No need to adjudicate)

text:
C 202/26               EN                       Official Journal of the European Communities                                        24.8.2002
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                lawyer, with an address for service in Luxembourg, against
                                                                           Commission of the European Communities (Agents: R. Tricot
                          of 12 June 2002                                  and M. Moretto) — application for annulment of Commission
                                                                           Decision C(1999)1050 of 27 April 1999 (REC 1/98) rejecting
in Case T-187/01: Arnaldo Mellone v Commission of the                      the request not to proceed with the post-clearance recovery of
                  European Communities (1)                                 import duties in respect of canned tuna from Turkey — the
                                                                           Court of First Instance (Fourth Chamber), composed of
(Officials — Staff reports — Action for annulment —                        M. Vilaras, President, V. Tiili and P. Mengozzi, Judges; H. Jung,
                       Action for damages)                                 Registrar, made an order on 14 June 2002, the operative part
                                                                           of which is as follows:
                          (2002/C 202/39)
                                                                           1.   There is no need to adjudicate on the present action.
                   (Language of the case: French)
                                                                           2.   The Commission shall bear all the costs.
In Case T-187/01: Arnaldo Mellone, an official of the Com-
mission of the European Communities, residing in Brussels,                 (1) OJ 1999 C 281.
represented by E. Boigelot, avocat, with an address for service
in Luxembourg, v Commission of the European Communities
(Agents: M. Langer and J. Currall) — application, first, for
annulment of the decision of 10 July 2000 by which the
Director-General of the Employment and Social Affairs Direc-
torate-General declared definitive the applicant’s staff report
for the period from 1 July 1995 to 30 June 1997 and, in so
far as may be necessary, annulment of the rectifying note of                     ORDER OF THE COURT OF FIRST INSTANCE
18 July 2000 and of the decision of the Vice-President of the
Commission of 24 April 2001 rejecting his complaint; second,
for a declaration by the Court that his staff report for                                           of 14 June 2002
1995–1997 has not been definitively drawn up and that it
should be removed from his personal file; and, third, for                  in Case T-325/99: Generale Conserve SpA v Commission
compensation for the professional and non-material damage                                of the European Communities (1)
suffered by the applicant, amounting to 10 000 euros — the
Court of First Instance (Single Judge: H. Legal); J. Palacio
González, Administrator, for the Registrar, has given a judg-             (Common customs tariff — No post clearance recovery of
ment on 12 June 2002, in which it:                                                    import duties — No need to adjudicate)
1.    Dismisses the application;                                                                   (2002/C 202/41)
2.    Orders the parties to bear their own costs.
                                                                                (Language of the case: Italian)
(1) OJ C 289 of 13.10.2001.
                                                                           In Case T-325/99: Generale Conserve SpA, established in
                                                                           Assago (Italy), represented by C. Cigolini, G. Durazzo and
                                                                           M. Hengel, lawyers, with an address for service in Luxembourg,
                                                                           against Commission of the European Communities (Agents:
      ORDER OF THE COURT OF FIRST INSTANCE                                 R. Tricot and M. Moretto) — application for annulment of
                                                                           Commission decision No C(1999) 1596 of 17 June 1999 (REC
                          of 14 June 2002                                  6/98) rejecting the request not to recover, post clearance,
                                                                           import duties by the applicant in respect of canned tuna from
in Case T-179/99: Sud Pesca SpA v Commission of the                        Turkey — the Court of First Instance (Fourth Chamber),
                  European Communities (1)                                 composed of M. Vilaras, President, V. Tiili and P. Mengozzi,
                                                                           Judges; H. Jung, Registrar, made an order on 14 June 2002,
(Common customs tariff — Failure to proceed to post-                       the operative part of which is as follows:
clearance recovery of import duties — Refund of import
                duties — No need to adjudicate)                            1.   There is no need to adjudicate on the present application.
                          (2002/C 202/40)                                  2.   The Commission shall bear all the costs.
                   (Language of the case: Italian)
                                                                           (1) OJ 2000 C 63.
In Case T-179/99: Sud Pesca SpA, established in Aspra
Baghiera (Italy), represented by G. Amenta and M. Merola,


28.3.98              EN                 Official Journal of the European Communities                                C 94/17
      Removal from the register of Case C-314/97 (1)                     Removal from the register of Case C-267/96 (1)
                         (98/C 94/41)                                                       (98/C 94/44)
By order of 1 December 1997, the President of the Court
of Justice of the European Communities ordered the                 By order of 19 December 1997, the President of the Court
removal from the register of Case C-314/97 (Reference for          of Justice of the European Communities ordered the
a preliminary ruling from the Oberlandesgericht Wien):             removal from the register of Case C-267/96: Republic of
Verein zur Förderung des freien Wettbewerbs im Medien-             France, supported by the Grand Duchy of Luxemburg v.
wesen v. Bauer Spezialzeitschriften Verlag KG.                     European Parliament.
(1) OJ C 331, 1.11.1997.
                                                                   (1) OJ C 269, 14.9.1996.
      Removal from the register of Case C-146/97 (1)                      Removal from the register of Case C-58/97 (1)
                         (98/C 94/42)
                                                                                (98/C 94/45)
By order of 4 December 1997, the President of the Court
of Justice of the European Communities ordered the                 By order of 19 December 1997, the President of the Court
removal from the register of Case C-146/97: Commission             of Justice of the European Communities ordered the
of the European Communities v. Hellenic Republic.                  removal from the register of Case C-58/97: Commission of
                                                                   the European Communities v. Italian Republic.
(1) OJ C 199, 28.6.1997.
                                                                   (1) OJ C 108, 5.4.1997.
      Removal from the register of Case C-100/97 (1)
                         (98/C 94/43)                                     Removal from the register of Case C-68/97 (1)
                                                                                (98/C 94/46)
By order of 11 December 1997, the President of the Court
of Justice of the European Communities ordered the
removal from the register of Case C-100/97: Commission
of the European Communities v. Grand Duchy of                      By order of 20 January 1998, the President of the Court
Luxembourg.                                                        of Justice of the European Communities ordered the
                                                                   removal from the register of Case C-68/97: Commission of
(1) OJ C 131, 26.4.1997.                                           the European Communities v. Kingdom of Belgium.
                                                                   (1) OJ C 108, 5.4.1997.


title: Case T-209/01: Action brought on 12 September 2001 by Honeywell International Inc. against the Commission of the European Communities

text:
24.11.2001             EN                     Official Journal of the European Communities                                       C 331/23
Action brought on 10 September 2001 by Volkswagen                        Referring to the case-law of the Court of Justice, the applicant
AG against the Commission of the European Communi-                       submits that Volkswagen’s written and oral requests were
                                ties                                     unilateral measures and not agreements within the meaning of
                                                                         Article 81(1) EC. They were not incorporated in the dealership
                                                                         agreement and the Contracting Parties did not subsequently
                         (Case T-208/01)                                 make them part of the agreement.
                         (2001/C 331/38)
                                                                         Further, the applicant maintains that there is no appreciable
                                                                         effect on trade between the Member States. It has not been
                   (Language of the case: German)                        proved that increasing or decreasing the discount by a few
                                                                         percentage points would have led to a noticeable increase in
                                                                         parallel trade.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               Finally, the applicant submits that the fine imposed on it is
European Communities on 10 September 2001 by Volkswag-                   unfounded. Even supposing that there were infringement of
en AG, Wolfsburg (Germany), represented by R. Bechtold,                  Article 81(1), the fine is excessively high.
lawyer.
The applicant claims that the Court should:
—     Annul the Commission’s decision of 29 June 2001 (Case
      COMP/F-2/36.693 — Volkswagen);
                                                                         Action brought on 12 September 2001 by Honeywell
                                                                         International Inc. against the Commission of the European
—     in the alternative, reduce the fine imposed by Article 2 of                                   Communities
      the Decision;
                                                                                (Case T-209/01)
—     order the Commission to pay the costs.
                                                                                (2001/C 331/39)
Pleas in law and main arguments                                                             (Language of the case: English)
At the time of the launch of the new ‘VW Passat’ onto
the German market, the Volkswagen marketing director for                 An action against the Commission of the European Communi-
Germany sent a circular urging German Volkswagen dealers                 ties was brought before the Court of First Instance of the
and garages not to sell the new models for less than the                 European Communities on 12 September 2001 by Honeywell
recommended retail price and to observe ‘strict price disci-             International Inc., represented by Paul Lasok QC and Frederic
pline’.                                                                  Depoortere of Skadden, Arps, Slate, Meagher & Flom LLP,
                                                                         Brussels (Belgium).
On the basis of a complaint made by a car buyer, the
Commission initiated a formal procedure, which led to the                The applicant claims that the Court should:
adoption of the contested Decision. In the Decision, the
Commission found that the applicant, by fixing the selling               —     join the present case with the action brought by General
price of the VW Passat on the basis of the abovementioned                      Electric Co. for annulment of the Commission’s decision
request, had infringed Article 81(1) EC. A fine of EUR                         of 3 July 2001,
30,96 million was imposed on the applicant.
                                                                         —     order such measures of inquiry (including the hearing as
                                                                               witnesses or, as the case may be, as experts of the persons
In support of its claims, the applicant argues that the conduct                identified in this application) as may appear necessary,
complained of and not disputed by it did not infringe
Article 81(1) EC. It admits that its employees contravened
German competition law in a way attributable to it. However,             —     annul the Commission’s decision of 3 July 2001,
the applicant submits that Article 81(1) does not contain a
prohibition on making recommendations. That provision                    —     take such other or further steps as justice may require,
prohibits only anticompetitive agreements, decisions and
concerted practices but not requests and mere recommen-                  —     order the Commission to pay its own and Honeywell’s
dations.                                                                       costs.
 ---pagebreak--- C 331/24               EN                      Official Journal of the European Communities                                      24.11.2001
Pleas in law and main arguments                                                 economic analysis, and does not provide any evidence or
                                                                                quantification of the alleged effects of bundling, cross-
                                                                                subsidisation or predation on Honeywell’s rivals.
                                                                          —     The decision also infringes the applicant’s rights of
The applicant in the present case is a diversified technology                   defence in that it relies on new theories of cross-
and manufacturing company incorporated under the laws of                        subsidisation and predation, which either were not men-
the State of Delaware (USA). It seeks annulment of the                          tioned or were not developed in the statement of
Commission’s decision of 3 July 2001 (C(2001)1746 final,                        objections in such a way as to allow the applicant to
adopted pursuant to Article 8(3) of Council Regulation (EEC)                    defend itself.
No 4064/89 of 21 December 1989 on the control of
concentrations between undertakings, as last amended by
Regulation (EC) No 1310/97 of 30 June 1997 (‘the Merger                   The applicant underlines the fact that the present case concerns
Regulation’).                                                             the same markets and one of the same parties as those involved
                                                                          in a merger which raised identical issues in the same industry
                                                                          and was approved by the Commission less than 20 months
                                                                          before the Commission adopted the contested decision.
It is pointed out in this regard that on 5 February 2001,
General Electric Company, a diversified industrial company
incorporated in the State of New York (USA), notified to the
Commission a proposed concentration pursuant to Article 4
of the Merger Regulation by which GE had agreed to acquire
the entire share capital of Honeywell.                                    Action brought on 12 September 2001 by the General
                                                                          Electric Company against the Commission of the Euro-
                                                                                pean Communities
In the contested decision, the Commission declared the notified                                   (Case T-210/01)
concentration to be incompatible with the common market
and with the EEA Agreement. According to that decision, the                                       (2001/C 331/40)
proposed merger would lead to the creation or strengthening
of a dominant position on several markets, as a result of
which effective competition in the common market would be                                    (Language of the case: English)
significantly impeded.
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
In support of its claims, the applicant submits that:                     European Communities on 12 September 2001 by the General
                                                                          Electric Company, a company incorporated under the laws of
                                                                          the State of New York, represented by Nicholas Green QC,
                                                                          Cherie Booth QC, Jessica Simor, Kelyn Bacon, Simon Baxter
—     The decision does not reflect the facts and relies for its
                                                                          and Marleen Van Kerckhove of Clifford Chance, Brussels, and
      conclusions on manifest and serious factual errors. In
                                                                          Louis Vogel and Joseph Vogel of Vogel & Vogel, Paris.
      particular, there is no factual basis for the assertions in
      that decision that bundling is a common practice in
      the aerospace industry, that Honeywell has engaged in               The applicant claims that the Court should:
      extensive bundling in the past or that the proposed
      merger with GE would have enabled the merged entity to              —     annul Commission Decision C(2001)1746 dated 3 July
      foreclose or marginalise rivals by engaging in bundling.                  2001 in Case COMP/M.2220 — General Electric/Hone-
                                                                                ywell,
—     The decision is based on manifest errors in its assessment          —     order the Commission to pay the costs.
      of the facts as regards, inter alia, its conclusions that the
      merger in question would provide the incentive and the
      means to engage in bundling in respect of BFE (Bayer
                                                                          Pleas in law and main arguments
      Furnished Equipment) products as well as SFE Supplier
      Furnished Equipment) and SFE-option products, that
      customers in the aerospace industry will accept bundling,           The applicant in this case is a diversified industrial corporation
      and that bundling will marginalise Honeywell’s rivals and           incorporated in the State of New York (USA). On 5 February
      force them out of the market.                                       2001, the applicant notified to the Commission, pursuant to
                                                                          Article 4 of the Merger Regulation, a proposed concentration
                                                                          by which the applicant has agreed to acquire the entire
—     The decision is insufficiently reasoned in that it provides         share capital of Honeywell, an advanced technology and
      no evidence in support of its conclusions concerning the            manufacturing company incorporated in the State of Delaware
      existence and effects of bundling, is not based on any              (USA).


title: Case T-71/15: Judgment of the General Court of 16 February 2017 — Jaguar Land Rover v EUIPO — Nissan Jidosha (Land Glider) (EU trade mark — Opposition proceedings — Application for EU word mark Land Glider — Earlier EU and national word and figurative marks LAND ROVER — Relative ground for refusal — Article 8(5) of Regulation (EC) No 207/2009)

text:
               3.4.2017

               EN

               Official Journal of the European Union

               C 104/44

         Judgment of the General Court of 16 February 2017 — Jaguar Land Rover v EUIPO — Nissan Jidosha (Land Glider)
   (Case T-71/15) (1)

   ((EU trade mark - Opposition proceedings - Application for EU word mark Land Glider - Earlier EU and national word and figurative marks LAND ROVER - Relative ground for refusal - Article 8(5) of Regulation (EC) No 207/2009))
   (2017/C 104/62)
   Language of the case: English

      Parties

      Applicant: Jaguar Land Rover Ltd (Coventry, United Kingdom) (represented by: R. Ingerl, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: J. Garrido Otaola, Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Nissan Jidosha KK (Yokohama, Japan) (A. Franke, lawyer)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of EUIPO of 9 December 2014 (Case R 1415/2013-4) relating to opposition proceedings between Jaguar Land Rover and Nissan Jidosha.

      Operative part of the judgment

   The General Court:

               1.

               Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 9 December 2014 (Case R 1415/2013-4);

               2.

               Orders EUIPO to bear its own costs and to pay those incurred by Jaguar Land Rover Ltd;

               3.

               Orders Nissan Jidosha KK to bear its own costs.

      (1)  OJ C 118, 13.4.2015.


title: Action brought on 30 June 1997 by the Kingdom of Spain against Commission of the European Communities (Case C-240/97)

text:
6 . 9 . 97             1 EN |                Official Journal of the European Communities                                  C 271 /5
      national park, there is no significant change affecting           Action brought on 30 June 1997 by the Kingdom of Spain
      the nature or conditions of operation of the measure .                against Commission of the European Communities
      The Commission's decision reducing its assistance so
                                                                                ( Case C-240/97 )
      that no monies spent by the Office of Public Works on
      the development at the Burren National Park were to                                       ( 97/C 271 /07)
      be treated as eligible European Regional Development
      Fund expenditure is therefore a breach of the
      provisions of Article 24 of Regulation ( EEC ) No 4253/
      88 and ought to be annulled.                                      An action against the Commission of the European
                                                                        Communities was brought before the Court of Justice on
ii ) Incorrect interpretation of Article 24                             30 June 1997 by the Kingdom of Spain, represented by
                                                                        Santiago Ortiz Vaamonde, Abogado del Estado, acting as
                                                                        Agent, with an address for service in Luxembourg at the
      Even if the Court does not accept that no significant             Spanish Embassy, 4—6 Boulevard Emmanuel Servais .
      change took place in relation to the development at
      the Burren National Park, the applicant submits in
      relation to both developments that the conditions for
      the reduction or suspension of assistance under                   The applicant claims that the Court of Justice should:
      Article 24 of Regulation ( EEC ) No 4253/88 have not
      been met since no irregularity took place and no sums
      were received unduly.                                             1 . annul Commission Decision 97/333/EC of 23 April
                                                                            1997 (') on the clearance of the accounts in respect of
in ) Force majeure                                                          the expenditure for 1993 financed by the EAGGF as
                                                                            regards the financial adjustments made in relation to
                                                                            export refunds for butter and meat and aid for the
      In the circumstances of the present case, the applicant               processing of fruit and vegetables .
      submits that it could not have sought the
      Commission's approval for any changes that took
      place since the projects as originally conceived were
      found to be in breach of Irish planning law by the                2 . order the Commission to pay the costs.
      Supreme Court of Ireland, who ordered work on the
      projects to cease until planning permission was
      obtained. Subsequently the planning permission                    Pleas in law and main arguments adduced in support:
      applications lodged were refused, in the case of the
      project in the Wicklow National Park, and withdrawn
      following that refusal, in the case of the project in the
      Burren National Park .                                            Export refunds for butter
      The applicant therefore submits that it could not have
      gone ahead with the original projects due to                      The adjustment concerns a sale of 1 550 tonnes of butter
      circumstances      outside    its control . Moreover     the      bound ultimately for Kaliningrad ( Russian Federation ).
      circumstances which caused non-performance of the                 The problem is one purely of fact. The Commission is
      projects as initially agreed were abnormal and                    withholding advance funds from Spain for lack of
      unforeseeable since the Office of Public Works had at             evidence that the butter was actually exported to a non
       all time complied with what had been perceived to be             member country, owing to its poor quality.
      the applicable law in Ireland for circa 30 years.
iv) Breach of the duty of sincere cooperation                           The Spanish authorities regarded as more that sufficient
                                                                        the evidence produced by the exporter, since it documents
                                                                        the incidents affecting the cargo before it was finally
      The duty of sincere cooperation between the Member                discharged in a non-member country. It is impossible to
       States and the Community is a well established                   assess the Commission's evidence to the contrary because
      principle of Community law. The applicant submits                 it has produced none .
      that the Commission, by reducing the assistance due
       to Ireland under the Operational Programme, has
       breached this duty.
                                                                        Export refunds for beef and veal
 (') Council Regulation ( EEC ) No 4253/88 of 19 December 1988
     laying down provisions for implementing Regulation ( EEC)
     No 2052/88 as regards coordination of the activities of the        Article 68 of the Community Customs Code ( Regulation
     different Structural Funds between themselves and with the         ( EEC ) No 2913/92 (2 )) provides for the examination or
     operations of the European Investment Bank and the other           physical checking of goods as an alternative, and not
     existing financial instruments .                                   exclusive, procedure for verifying the declarations
                                                                        accepted by the customs authorities, since at the same
                                                                        time it provides for documentary checks . Article 71 ( 1 ) of
 ---pagebreak---  C 271 /6                  EN                  Official Journal of the European Communities                                     6 . 9 . 97
the same regulation provides that the results of the                      The applicant claims that the Court should:
 verification, by either of the procedures allowed, are to be
 used for the purposes of applying the provisions governing
 the customs procedure under which the goods are placed .
                                                                          1 . annul Commission Decision 97/333/EC of 23 April
                                                                               1997 on the clearance of the accounts presented by the
                                                                               Member States in respect of the expenditure for 1993
 In a first instance it was noted that part of the goods did                   on the Guarantee Section of the European Agricultural
 not correspond to those indicated in the declaration. The                     Guidance and Guarantee Fund ( EAGGF) in so far as it
 Commission considered that ' the facts known indicate that
                                                                               disallows, in respect of the applicant, Community
 the consignment exported was of uniform composition',                         financing for the sum of Bfrs 413 309 611 by way of
 and therefore made a financial adjustment for the whole                       expenditure incurred for the advance payment of
consignment. However, the Spanish authorities were only                        export refunds;
 able to make an overall adjustment in respect of the
 declaration made by the person concerned on the basis of
 facts proved incontestably, not mere suspicions or fears.
                                                                          2. order the Commission to pay the costs .
 In a second instance, the Commission accepted the
 Spanish investigation as evidence that part of the                       Pleas in law and main arguments adduced in support:
declaration was incorrect but did not accept it as regards
the part which could not be proved false.
                                                                          — Infringement of Article 5 of Regulation ( EEC) No 729/
Export refunds in relation to processing                                       70 and Article 190 of the EC Treaty and infringement
contracts for fruit and vegetables ( citrus )                                 of the principle that due care should be taken : in
                                                                              preparing and adopting the contested decision, the
                                                                              Commission did not cooperate fairly with the Belgian
                                                                              authorities; furthermore, in inquiring into the data
The Commission perceived a fraud in the fact that a
                                                                              provided to it, the Commission did not set to work
processor of citrus fruits, as a result of a change of dates
                                                                              with the requisite care . The factual data produced by
negotiated ex post facto, obtained a lower minimum price                      the Belgian authorities and the mistakes and
but at the same time maintained the higher rate of aid
                                                                              inaccuracies identified by the applicant in the
which would have been appropriate had the contract date
                                                                              Commission's final conclusions have been disregarded
not been changed. But that was not the true position. The
                                                                              by the Commission without stating any grounds for so
processor obtained, in relation to the contracts of which
                                                                              doing. As a result, the Commission is in breach of the
the dates were changed, the lower rate of aid available for
                                                                              obligation of bona fide cooperation ( Article 5 of the
operations on or after 12 February 1993 , not the earlier
rate .
                                                                              EC Treaty, as given practical effect by the so-called
                                                                              ' Belle reform' and the conciliation procedure )* and of
                                                                              the principle that due care should be taken.
(') OJ L 139 , 30 . 5 . 1997, p . 30 .
( 2 ) OJ L 302 , 19 . 10 . 1992 , p . 1 .
                                                                              If the Commission had seriously and objectively
                                                                              inquired into the data and observations submitted by
                                                                              the Belgian authorities, its assessment of the risk
                                                                              connected with the deficiencies found would have been
                                                                              different and it would have had either to refrain in
                                                                              whole or in part from making a flat-rate correction or
Action brought on 3 July 1997 by the Kingdom of                               to apply a lower correction factor.
Belgium against the Commission of the European
                               Communities
                            ( Case C-242/97)                             — Infringement of Regulations ( EEC ) Nos 729/70 and
                              ( 97/C 271 /08 )                                1732/72 and of Article 190 of the EC Treaty: what is
                                                                              involved in this case is not expenditure which was
                                                                              wrongly incurred but a flat-rate sanction in the form
                                                                              of a refusal of a percentage of the expenditure
An action against the Commission of the European                              incurred imposed on the ground that the supervisory
Communities was brought before the Court of Justice of                        system set up in the Member State concerned is
the European Communities on 3 July 1997 by the                                allegedly inadequate. In the applicant's view, the
Kingdom of Belgium, represented by Jan Devadder,                              Commission is only entitled to impose flat-rate
General Adviser in the Ministry of Foreign Affairs,                           sanctions on the ground of perceived shortcomings in
Foreign Trade and Development Cooperation, and Hans                           the supervisory systems set up by Member States
Gilliams, of the Brussels Bar, acting as Agents, with an                      where three ( cumulative ) conditions are satisfied, that
address for service in Luxembourg at the Belgian Embassy,                     is to say, where the Commission can produce sufficient
4 Rue des Girondins .                                                         evidence that:


title: Judgment of the Court of First Instance of 6 March 2001 in Case T-100/00: Franco Campoli v Commission of the European Communities (Officials — Transfer/Reassignment — Statement of reasons — Misuse of powers — Interests of the service)

text:
2.6.2001                 EN                     Official Journal of the European Communities                                       C 161/17
represented by A. Dashwood and W.-J. Outhwaite, Barristers,                1.    Annuls the Commission’s decision of 29 June 1999, rejecting
with an address for service in Luxembourg, against European                      the complaint of Métropole Télévision SA of 5 December
Investment Bank (Agents: J.-P. Minnaert, Z. Zachariadis, and                     1997;
A. Barav) — application for annulment of both the decision to
abolish, as of 1 January 1999, the system of special conversion            2.    Orders the Commission to pay the costs.
rates and the salary statements of the applicants in which that
decision was applied — the Court of First Instance (Third
Chamber), composed of: J. Azizi, President, K. Lenaerts and
M. Jaeger, Judges; B. Pastor, Principal Administrator, for the             (1) OJ C 333 of 20.11.99.
Registrar, has given a judgment on 6 March 2001, in which it:
1.    Annuls the applicants’ salary statements for January 1999 in
      so far as the system of special conversion rates is not applied in
      them;
2.    Declares the remainder of the application inadmissible;
3.    Orders the European Investment Bank to pay the costs.                    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 6 March 2001
(1) OJ C 314 of 30.10.99.
                                                                           in Case T-100/00: Franco Campoli v Commission of the
                                                                                European Communities (1)
                                                                           (Officials — Transfer/Reassignment — Statement of
                                                                              reasons — Misuse of powers — Interests of the service)
                                                                                (2001/C 161/38)
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                (Language of the case: French)
                          of 20 March 2001
                                                                           In Case T-100/00: Franco Campoli, an official of the Com-
in Case T-206/99: Métropole Télévision SA v Commission                     mission of the European Communities, residing at Brussels,
                of the European Communities (1)                            represented by S. Diana, Avocat, with an address for service in
                                                                           Luxembourg, against Commission of the European Communi-
                                                                           ties (Agents: G. Valsesia and D. Waelbroeck) — first, appli-
(Competition — Rejection of a complaint — Compliance                       cation for the annulment of the decision of the Commission
with a judgment of the Court of First Instance annulling an                transferring the applicant from the ‘Foodstuffs — Legislation
exemption decision of the Commission — Duty to state                       and scientific and technical aspects’ unit 1 to the ‘Food
reasons — Obligations in relation to the investigation of                  production and biotechnology’ unit 2 of Industry Directorate E
                             complaints)                                   of DG III as well as the decision to appoint another official to
                                                                           the ‘Foodstuffs — Legislation and scientific and technical
                                                                           aspects’ unit as deputy-head and, secondly, a claim for damages
                           (2001/C 161/37)                                 — the Court of First Instance (Fifth Chamber), composed of
                                                                           P. Lindh , President, R. Garcı́a-Valdecasas and J.D. Cooke,
                                                                           Judges; J. Palacio González, Administrator, gave a judgment on
                     (Language of the case: French)                        6 March 2001, in which it:
                                                                           1.    dismisses the application;
In Case T-206/99: Métropole Télévision SA, established in
Paris (France), represented by D. Théophile, Avocat, with an
address for service in Luxembourg, against Commission of the               2.    orders each of the parties to bear its own costs.
European Communities (Agents: K. Wiedner and B. Mongin)
— application for the annulment of the Commission’s decision
of 29 June 1999 rejecting the complaint lodged by Métropole                (1) OJ C 176 of 24.6.00.
Télévision on 5 December 1997 — the Court of First Instance
(Fourth Chamber), composed of V. Tiili, President, R.M. Moura
Ramos and P. Mengozzi, Judges; G. Herzig, administrator, for
the Registrar gave a judgment on 21 March 2001, in which it:


title: Judgment of the Court (Sixth Chamber) of 16 June 2005 in Case C-191/04: Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Pollution and nuisance — Urban waste water treatment — Directive 91/271/EEC)

text:
               6.8.2005

               EN

               Official Journal of the European Union

               C 193/7

      JUDGMENT OF THE COURT

   (Sixth Chamber)
   of 16 June 2005
   in Case C-191/04: Commission of the European Communities v French Republic (1)

   (Failure of a Member State to fulfil obligations - Pollution and nuisance - Urban waste water treatment - Directive 91/271/EEC)
   (2005/C 193/11)
   Language of the case: French
   In Case C-191/04: action for failure to fulfil obligations under Article 226 EC, brought on 23 April 2004, Commission of the European Communities (Agents: A. Bordes and G. Valero Jordana) v French Republic (Agents: G. de Bergues and C. Jurgensen-Mercier) the Court (Sixth Chamber), composed of A. Borg Barthet (Rapporteur), President of the Chamber, A. La Pergola and A. Ó Caoimh, Judges; Advocate General: J. Kokott, Registrar: R Grass, gave a judgment on 16 June 2005, in which it:

               1.

               Declares that, by failing to provide to the Commission of the European Communities, within six months of the request made on 18 December 2000, the information to be collected by 31 December 1999 by the competent authorities or appropriate bodies as part of the monitoring of discharges and residual sludge, introduced by Article 15 of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment, with respect to the agglomerations concerned by the 31 December 1998 time-limit, the French Republic has failed to fulfil its obligations under Article 15(4) of that directive;

               2.

               Orders the French Republic to pay the costs.

      (1)  OJ C 156 of 12.06.2004


title: Case T-210/02: Action brought on 12 July 2002 by the British Aggregates Association Co Limited against the Commission of the European Communities

text:
14.9.2002             EN                      Official Journal of the European Communities                                      C 219/23
Action brought on 12 July 2002 by the British Aggregates                 certain sectors are not taxed in order to protect their competi-
Association Co Limited against the Commission of the                     tiveness. Therefore, the Levy must be considered to be State
                    European Communities                                 Aid.
                        (Case T-210/02)
                                                                         Furthermore, the applicant submits that the Commission failed
                                                                         to state reasons in the contested Decision, as required by
                        (2002/C 219/54)                                  Article 253 EC Treaty. According to the applicant, the
                                                                         Commission also violated its obligation to initiate a formal
                                                                         investigation procedure, where the preliminary investigation
                  (Language of the case: English)                        was carried out in insufficient depth to resolve the serious
                                                                         difficulties regarding the compatibility of the measure with the
                                                                         State Aid provisions. The applicant also submits that the
                                                                         Commission violated its procedural obligations in the prelimi-
                                                                         nary investigation. In this respect, the applicant claims that
An action against the Commission of the European Communi-                the Commission did not conduct a diligent and impartial
ties was brought before the Court of First Instance of the               examination of the applicant’s complaint and did not provide
European Communities on 12 July 2002 by the British                      the applicant with an adequate explanation for rejecting its
Aggregates Association Co Limited, represented by Craig                  arguments.
Pouncey and Lode Van Den Hende of Herbert Smith, Brussels
(Belgium).
The applicant claims that the Court should:
—     annul Commission Decision C(2002) 1478fin of 24 April
      2002 ‘State Aid N 863/01- United Kingdom/Aggregates
      Levy’ save as regards the exemption for Northern Ireland;
                                                                         Action brought on 15 July 2002 by Tideland Signal
                                                                         Limited against the Commission of the European Com-
—     order the Commission to pay the applicant’s costs in the                                        munities
      present proceedings.
                                                                                (Case T-211/02)
Pleas in law and main arguments
                                                                                (2002/C 219/55)
The applicant is an association representing smaller and
                                                                                (Language of the case: English)
independent quarrying companies in the United Kingdom.
The competitive position of its members is affected by the
Aggregates Levy, an environmental tax raised by the United
Kingdom on certain aggregates. The objective of the Levy is to
reflect the environmental impacts of aggregate quarrying more
fully in the price of aggregates. These environmental costs              An action against the Commission of the European Communi-
include noise, dust, damage to biodiversity and visual amenity.          ties was brought before the Court of First Instance of the
A further objective of the Levy is the encouragement of the              European Communities on 15 July 2002 by Tideland Signal
use of recycled or alternative material.                                 Limited, represented by Christopher Thomas and Ciara Kenne-
                                                                         dy of Lovells, Brussels (Belgium).
In the contested Decision, the Commission declared the Levy
to be compatible with the Common Market.                                 The applicant claims that the Court should:
                                                                         —     annul the Commission Decision of 17 June 2002 rejecting
According to the applicant, the Commission made a manifest                     the tender submitted by Tideland Signal Limited in
error of assessment in deciding that the distinction made                      tender procedure EUROPEAID/112336/C/S/WW-TACIS-
between taxable and non-taxable situations is justified by the                 (RE-TENDER);
logic and nature of the tax system. The applicant claims,
however, that the objectives of the Levy cannot explain the
different treatment of similar situations. The applicant also            —     order the Commission to pay the costs incurred by the
stated that the United Kingdom authorities admitted that                       applicant.


title: Case C-83/08: Reference for a preliminary ruling from the Thüringer Finanzgericht (Germany), lodged on 25 February 2008 — Glückauf Brauerei GmbH v Hauptzollamt Erfurt

text:
               24.5.2008

               EN

               Official Journal of the European Union

               C 128/21

         Reference for a preliminary ruling from the Thüringer Finanzgericht (Germany), lodged on 25 February 2008 — Glückauf Brauerei GmbH v Hauptzollamt Erfurt
   (Case C-83/08)
   (2008/C 128/35)
   Language of the case: German
   Referring court
   Thüringer Finanzgericht
   Parties to the main proceedings

      Claimant: Glückauf Brauerei GmbH

      Defendant: Hauptzollamt Erfurt
   Question referred
   Are the criteria of legal and economic independence referred to in Article 4(1) of Council Directive 92/83/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on alcohol and alcoholic beverages (1) for applying the reduced duty rates to be understood, in view of the recitals to the Directive, as meaning that economic dependence between otherwise legally independent breweries is to be presumed only where the breweries concerned cannot act as competitors in the market uninfluenced by each other, or is the mere de facto possibility of influence on the business activity of the breweries sufficient for the criterion of independence to be met no longer?

      (1)  OJ 1992 L 316, p. 21.


Important legal notice

|

E2002P0003

Request for an Advisory Opinion from the EFTA Court by Høyesterett by decision of that court of 17 December 2002 in the case of Paranova AS v Merck & Co Inc., et al (Case E-3/02)

Official Journal C 075 , 27/03/2003 P. 0012 - 0012

Request for an Advisory Opinion from the EFTA Court by Høyesterett by decision of that court of 17 December 2002 in the case of Paranova AS v Merck &  Co Inc., et al(Case E-3/02)(2003/C 75/12)A request has been made to the EFTA Court by decision of 17 December 2002 of Høyesterett (Supreme Court), Norway, which was received at the Court Registry on 24 December 2002, for an Advisory Opinion in the case of Paranova AS v Merck &  Co Inc., et al., on the following questions:1. Do "legitimate reasons" exist within the meaning of Article 7(2) of Council Directive 89/104/EEA, cf. Articles 11 and 13 of the EEA Agreement, in a case where the conditions for permitting a parallel importer to undertake repackaging of pharmaceutical products and reaffixing of the trade mark have been met, but where the trade mark proprietor opposes the marketing of the repackaged product with the trade mark reaffixed in a packaging that the parallel importer has equipped with coloured stripes and/or other graphic elements that make up a part of the design of the packaging?2. In answering the question, it should be indicated whether the criterion of necessity that the Court of Justice of the European Communities has applied in interpreting "legitimate reasons" within the meaning of Article 7(2) of Council Directive 89/104/EEA applies also to the more specific design of the packaging, or if the more specific design of the packaging is to be assessed solely on the basis of the condition that the repackaging must not adversely affect the reputation of the trade mark proprietor or the trade mark.


title: Removal from the register of C-331/97

text:
C 184/8               EN                Official Journal of the European Communities                                       13.6.98
Commission of the European Communities, was brought                     (b) was entitled to substitute its own reasoning for
before the Court of Justice of the European Communities                       one of the two reasons stated in the contested
on 27 April 1998 by D.I.R. International Film S.r.l.                          decision, the Court of First Instance's reasoning
(D.I.R.'), of Via Leonardo Fibonacci 43, 00166 Rome,                         was in any event irreconcilable with Article 85 of
Italy, Nostradamus Enterprises Limited (Nostradamus                          the EC Treaty, read in conjunction with Council
Enterprises'), of The Glassworks, 3Ð4 Ashland Place,                          Regulation 17/62.
London W1M 3JH, United Kingdom, Union P.N. S.r.l.
(Union'), of Via Margutta 33, 00187 Rome, Italy, United           (1) OJ C 137, 3.6.1995, p. 32.
International Pictures B.V. (UIP'), of Rijswijkstraat 175,        (2) Council Regulation 17/62 of 6 February 1962, First
1062 EV Amsterdam, Netherlands, United International                   Regulation implementing Articles 85 and 86 of the Treaty (OJ
Pictures AB (UIP AB'), of Hornsbruksgatan 19, 10274                   13, 21.2.1962, p. 204 [SE SER1 (59Ð62) p. 87]).
                                                                   (3) Council Decision 90/685/EEC of 21 December 1990
Stockholm, Sweden, United International Pictures APS
                                                                       concerning the implementation of an action programme to
(UIP APS'), of Hauchsvej 13, 1825 Frederiksberg C,                    promote the development of the European audiovisual
Copenhagen, Denmark, United International Pictures A/S                 industry (Media) (1991 to 1995) (OJ L 380, 31.12.1990,
(UIP A/S'), of Hegdehaugsveien 27, 0352 Oslo 3,                       p. 37).
Norway, United International Pictures EPE (UIP EPE'), of
4 Gambetta Street, Athens Gr. 106 78, Greece, United
International Pictures OY (UIP OY'), of Kaisaniemenkatu
1 C, 00100 Helsinki, Finland and United International
Pictures y Cia SRC (UIP y Cia SRC'), of Plaza del Callao
4Ð6o, Madrid 28013, Spain, represented by Alexandre                          Removal from the register of C-331/97 (1)
Vandencasteele and Olivier Speltdoorn, of the Brussels                                      (98/C 184/11)
Bar, of Liedekerke SimeÂon Wessing Houthoff, Brussels,
with an address for service in Luxembourg at the
Chambers of Ernest Arendt, 8Ð10 Rue Mathias Hardt.                 By order of 25 March 1998 the President of the Court of
                                                                   Justice of the European Communities has ordered the
                                                                   removal from the register of Case C-331/97: Commission
The Appellant claims that the Court should:                        of the European Communities v. Federal Republic of
                                                                   Germany.
Set aside the contested judgment and accordingly
                                                                   (1) OJ C 331, 1.11.1997.
Ð give final judgment on the case, grant the Appellants
     the order sought before the Court of First Instance and
     order the Commission to pay the costs of the
     proceedings both before the Court of First Instance
     and the Court of Justice;
                                                                             Removal from the register of C-393/97 (1)
Ð or, in the alternative, refer the case back to the Court                                  (98/C 184/12)
     of First Instance for judgment and reserve the costs.
                                                                   By order of 25 March 1998 the President of the Court of
Pleas in law and main arguments adduced in support:                Justice of the European Communities has ordered the
                                                                   removal from the register of Case C-393/97 (reference
The Appellants rely on three grounds of appeal based on            for a preliminary ruling from the Verwaltungsgericht
an infringement of Community law by the Court of First             Halle): Lidl-Fleischwerk Handelshof GmbH & Co. KG v.
Instance, in particular of Articles 85, 173 and 190 of the         Landkreis Burgenlandkreis.
EC Treaty, of Council Regulation 17/62 (2), of Council
Decision 90/685/EEC (3), of the EFDO Guidelines and of             (1) OJ C 41, 7.2.1998.
the general principles of legal certainty and legitimate
expectations.
The Court of First Instance:
                                                                             Removal from the register of C-302/96 (1)
1) wrongly considered that the Commission enjoyed                                           (98/C 184/13)
     discretionary power to assess the eligibility of EFDO
     funding applications;
                                                                   By order of 26 March 1998 the President of the Court of
                                                                   Justice of the European Communities has ordered the
2) illegally substituted its own reasoning for one of the          removal from the register of Case C-302/96: Commission
     two reasons stated in the contested decision, and;            of the European Communities, supported by Kingdom of
                                                                   Great Britain and Northern Ireland, v. Federal Republic of
3) even if the Court of First Instance                             Germany.
     (a) rightly considered that the Commission enjoyed            (1) OJ C 336, 9.11.1996.
          discretionary power to assess the eligibility of
          EFDO funding applications and


title: Case C-270/10: Judgment of the Court (Fifth Chamber) of 28 July 2011 (reference for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — proceedings brought by Lotta Gistö (Protocol on the Privileges and Immunities of the European Communities — Article 14, first paragraph — Determination of the domicile for tax purposes of the spouse of a European Union official — National legislation under which a person who has lived abroad for three years is no longer regarded as resident in the country and thus no longer subject to general tax liability)

text:
               8.10.2011

               EN

               Official Journal of the European Union

               C 298/8

         Judgment of the Court (Fifth Chamber) of 28 July 2011 (reference for a preliminary ruling from the Korkein hallinto-oikeus — Finland) — proceedings brought by Lotta Gistö
   (Case C-270/10) (1)

   (Protocol on the Privileges and Immunities of the European Communities - Article 14, first paragraph - Determination of the domicile for tax purposes of the spouse of a European Union official - National legislation under which a person who has lived abroad for three years is no longer regarded as resident in the country and thus no longer subject to general tax liability)
   2011/C 298/13
   Language of the case: Finnish

      Referring court

   Korkein hallinto-oikeus

      Party to the main proceedings

      Applicant: Lotta Gistö

      Re:

   Reference for a preliminary ruling — Korkein hallinto-oikeus — Interpretation of Article 14 (now Article 13) of the Protocol on the Privileges and Immunities of the European Union — Fixing of the residence for tax purposes of officials of the European Union and their spouses not separately engaged in a gainful occupation in the Member State of origin — National legislation laying down a rule for nationals under which, after the expiry of three years from the end of the year in which the national left the country, he is no longer regarded as resident in the country and hence no longer has general tax liability as regards his income

      Operative part of the judgment

   The first paragraph of Article 14 of the Protocol on the Privileges and Immunities of the European Communities, originally annexed to the Treaty establishing a Single Council and a Single Commission of the European Communities and subsequently, by virtue of the Treaty of Amsterdam, to the EC Treaty, must be interpreted as meaning that the spouse of a person who, solely because that person enters the service of the European Union, establishes his residence in the territory of a Member State other than his Member State of domicile for tax purposes at the time when that person entered the service of the European Union is regarded as having maintained his domicile for tax purposes in the latter Member State if he is not separately engaged in a gainful occupation.

      (1)  OJ C 221, 14.8.2010.


title: Judgment of the Court of First Instance of 30 September 2003 in Case T-214/02, María-Angeles Martínez Valls v European Parliament (Community officials — Competition — Non-admission to oral tests — Access to documents)

text:
29.11.2003                EN                          Official Journal of the European Union                                            C 289/21
Baere, lawyer, with an address for service in Luxembourg, v                   1.    Annuls the decision adopting the decision adopting the appli-
Commission of the European Communities (Agent: R. Wain-                             cant’s definitive staff report for the period 1 July 1995 to
wright): Application for annulment of Commission Regulation                         30 June 1997.
(EC) No 1400/2001 of 10 July 2001 concerning the classifi-
cation of certain goods in the Combined Nomenclature (OJ                      2.    Orders the Commission to pay the applicant EUR 1 500 by
2001 L 189, p. 5); corrigendum published in the German,                             way of compensation for non-material damages.
English, Finnish, Portuguese and Swedish editions (OJ 2001
L 191, p. 49), the Court of First Instance (Third Chamber),
composed of: K. Lenaerts, President, J. Azizi and M. Jaeger,                  3.    Orders the Commission to pay the costs.
Judges; J. Plingers, Administrator, for the Registrar, has given a
judgment on 30 September 2003, in which it:
                                                                              (1) OJ 2002 C 56 of 2.3.02.
1.    Annuls Commission Regulation (EC) No 1400/2001 of
      10 July 2001 concerning the classification of certain goods in
      the Combined Nomenclature (OJ 2001 L 189, p. 5) in so far
      as it classifies the console described in column 1 of the table in
      the Annex to that regulation under CN Code 9504 10 00 and
      the accompanying CD-ROM under CN Code 8524 39 90;
2.    Dismisses the request for production of the defendant’s legal
      opinion;                                                                    JUDGMENT OF THE COURT OF FIRST INSTANCE
3.    Orders the defendant to pay all the costs.
                                                                                of 30 September 2003
(1) OJ C 3 of 5.1.2002.
                                                                              in Case T-214/02, María-Angeles Martínez Valls v Euro-
                                                                                pean Parliament (1)
                                                                              (Community officials — Competition — Non-admission to
                                                                                oral tests — Access to documents)
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                (2003/C 289/45)
                        of 30 September 2003
                                                                                (Language of the case: French)
in Case T-296/01, Antonio Tatti v Commission of the
                     European Communities (1)
(Community officials — Staff report — Tardiness —                             In Case T-214/02, María-Angeles Martínez Valls, residing in
Irregularities in reporting procedure — Action for annul-                     Brussels (Belgium), represented by Georges Vandersanden and
                    ment — Action for damages)                                L. Levi, lawyers, against the European Parliament (Agents:
                                                                              H. von Hertzen and D. Moore) — application, first, for
                                                                              annulment of the letters of 3 April and 31 May 2002 by which
                            (2003/C 289/44)                                   the Selection Board found that the applicant had obtained
                                                                              insufficient marks in the written tests in competition PE/90/A
                      (Language of the case: French)                          and, with respect to the letter of 31 May 2002, by which the
                                                                              Selection Board rejected the applicant’s request seeking access
                                                                              to certain documents and, second, for compensation for the
                                                                              loss suffered as a result of those letters, the Court of First
In Case T-296/01, Antonio Tatti, official of the Commission                   Instance (Fifth Chamber), composed of R. García-Valdecasas,
of the European Communities, residing in Overijse (Belgium),                  President, and P. Lindh and J.D. Cooke, Judges, I. Natsinas,
represented by L. Vogel, lawyer, with an address for service                  Administrator for the Registrar, has given a judgment on
in Luxembourg, against the Commission of the European                         30 September 2003, in which it:
Communities (Agent: C. Berardis-Kayser), application, first, for
annulment of the decision adopting the applicant’s definitive
staff report for the period 1 July 1995 to 30 June 1997 and,                  1.    Holds that there is no need to rule on the application for
second, for damages, the Court of First Instance (Fourth                            annulment of the letter of 31 May 2002 in so far as it rejects
Chamber), composed of V. Tiili, President, and P. Mengozzi                          the request for access to documents.
and M. Vilaras, Judges; D. Christensen, Administrator, for the
Registrar, has given a judgment on 30 September 2003, in                      2.    Orders the Parliament to pay the applicant EUR 1 by way of
which it:                                                                           damages for non-material damage.
 ---pagebreak--- C 289/22                EN                          Official Journal of the European Union                                      29.11.2003
3.    Dismisses the remainder of the application.                               JUDGMENT OF THE COURT OF FIRST INSTANCE
4.    Orders the Parliament to bear its own costs and to pay half of                              of 17 September 2003
      the costs incurred by the applicant.
                                                                            in Case T-233/02: Charis Alexandratos and Maria Pana-
5.    Orders the applicant to bear one half of her own costs.                        giotou v Council of the European Union (1)
                                                                            (Officials — Action for annulment — Open competition —
(1) OJ 2002 C 219 of 14.09.02.                                              Decision of the selection board refusing admission to the
                                                                            oral tests — Scope of the obligation to state reasons —
                                                                            Scope of judicial review — Compliance with the rules
                                                                                governing the deliberations of the selection board)
                                                                                (2003/C 289/47)
                                                                                (Language of the case: Greek)
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                            In Case T-233/02, Charis Alexandratos and Maria Panagiotou,
                      of 18 September 2003                                  residing in Brussels (Belgium), represented by C. Tagaras,
                                                                            lawyer, v Council of the European Union, (Agents: F. Anton
                                                                            and D. Zahariou) — application for annulment of the decision
In Case T-221/02 Giorgio Lebedef and Others against the                     of the selection board in the Council’s open competition A/
       Commission of the European Communities (1)                           393 (2000/C98 A/02) refusing to admit the applicants to the
                                                                            oral tests for that competition, — the Court of First Instance
                                                                            (Fourth Chamber), composed of V. Tiili, President of the
(Officials — Pay — Travelling expenses — Method of                          Chamber, P. Mengozzi and M. Vilaras, Judges; Registrar:
                             calculation)                                   I. Natsinas, Administrator, delivered a judgment on 17 Septem-
                                                                            ber 2003, the operative part of which is as follows:
                          (2003/C 289/46)
                                                                            1.    The action is dismissed.
                    (Language of the case: French)                          2.    Each party shall bear its own costs.
                                                                            (1) OJ 2002 C 233 of 28.9.02.
In Case T-221/02: Giorgio Lebedef, an official of the Com-
mission of the European Communities, resident in Senningen-
berg (Luxembourg), and 63 other officials, represented by
G. Bounéou and F. Frabetti, lawyers, with an address for
service in Luxembourg, against Commission of the European
Communities (Agents: J. Currall and V. Joris) — application                     JUDGMENT OF THE COURT OF FIRST INSTANCE
for annulment of the Commission’s decision changing, with
effect from 1996 or 1997, the procedure for calculating the                                       of 30 September 2003
annual expense of travelling to Greece in respect of the journey
via Brindisi and annulment of the applicants’ reimbursement
statements implementing that decision — the Court of First                  in Case T-302/02 Michael Kenny v Court of Justice of the
Instance (Third Chamber), composed of K. Lenaerts, President,                                  European Communities (1)
J. Azizi and M. Jaeger, Judges; J. Plingers, Administrator, has
given a judgment on 18 September 2003 in which it:                          (Officials — Appointment — Discretion of the appointing
                                                                                authority — Interests of the service)
1.    Dismisses the action;
                                                                                (2003/C 289/48)
2.    Orders the parties to bear their own costs.                                               (Language of the case: French)
(1) OJ C 247 of 12 October 2002.
                                                                            In Case T-302/02 Michael Kenny, an official of the Court of
                                                                            Justice of the European Communities, residing at Roodt-sur-
                                                                            Syre (Luxembourg), represented by G. Vandersanden and