title: Action brought on 7 September 1998 by 'H' against the Commission of the European Communities (Case T-140/98)

text:
C 340/26              EN                 Official Journal of the European Communities                                   7.11.98
claim, first, that the Council failed to consult the                for service in Luxembourg at Fiduciaire Myson SARL, 30
European Parliament for a second time on the                        rue de Cessange.
modifications made by the Council to the Commission's
proposal for a regulation dated 8 April 1994 and that the           The applicant claims that the Court should:
European Community has no jurisdiction to legislate in
the North-East Atlantic.                                            Ð annul the decision of 29 October 1997 of the Brussels
                                                                        office responsible for settling claims refusing prior
Second, the contested regulation is contrary to the aims of             authorisation for reimbursement of subsistence
the common fisheries policy and the regulations                         expenses in connection with treatment at the Quiberon
implementing it.                                                        thalassotherapy centre;
                                                                    Ð order the defendant to pay the costs.
Third, the contested regulation should be annulled in so
far as it infringes the following higher principles of law:
                                                                    Pleas in law and main arguments adduced in support:
Ð the right to freedom to carry on a commercial activity            By the contested decision a request for prior authorisation
    in so far as the prohibition set out in the regulation at       to undergo treatment at a spa from 25 October to
    issue prevents the applicants from carrying on their            3 November 1997 was refused on the ground that the
    activity of fishing for white tuna using drift-nets;            treatment centre chosen did not provide treatment for the
                                                                    medical condition in question.
Ð the principle of proportionality set out in Article 3b of
    the Treaty, in view of the disproportionate and                 The applicant submits that this decision is vitiated by an
    manifestly inappropriate nature of the contested                abuse of rights and breaches the fundamental principle of
    measure in the light of the aim pursued, namely the             freedom to choose a doctor and place of treatment. The
    conservation of fishing resources;                              defendant cannot refuse on the basis of exclusively
                                                                    budgetary considerations to recognise the quality of the
                                                                    treatment given in a medical establishment.
Ð the principle of non-discrimination set out in
    Article 40(3) of the Treaty, in so far as the provisions
    of the new Articles 11, 11a, 11b and 11c of Council             Moreover, the decision is vitiated by a manifest error of
    Regulation (EC) No 894/97 do not apply to fishing in            assessment since the treatment centre chosen is recognised,
    the Baltic Sea, the Belts and the éresund, nor to               both by the competent national authorities and by doctors
    salmon fishing using drift-nets.                                specialising in the field of the particular complaint from
                                                                    which the applicant suffers, as competent to provide the
                                                                    appropriate treatment.
Finally, the applicants submit that the contested regulation
is vitiated by manifest error and is of an arbitrary nature         Finally, the defendant has failed to fulfil the legitimate
in so far as it was not adopted in order to ensure a                expectation the applicant was entitled to have as a result
rational and responsible use of available fishing resources,        of the information provided by the department responsible
but responds to the pressure from certain Member States             and has disregarded the obligation to provide the
and international public opinion to prohibit certain                applicant with a relevant statement of reasons establishing
Member States from fishing for certain species, in the              a cogent link between the findings of its medical officer
present case tuna and sword fish, using drift-nets and by a         and the conclusion it reached.
misuse of powers, in so far as it was adopted with the aim
of putting an end to Community controls on compliance
with the rules.
                                                                    Action brought on 10 September 1998 by SA Image
                                                                    CreÂation against Commission of the European
                                                                                Communities
Action brought on 7 September 1998 by H' against the                                     (Case T-142/98)
         Commission of the European Communities
                                                                                (98/C 340/51)
                        (Case T-140/98)
                         (98/C 340/50)                                             (Language of the case: French)
                                                                    An action against the Commission of the European
                (Language of the case: French)
                                                                    Communities was brought before the Court of First
                                                                    Instance of the European Communities on 10 September
An action against the Commission of the European                    1998 by SA Image CreÂation, established in Brussels,
Communities was brought before the Court of First                   represented by Georges Vandersanden, Eric Gillet and
Instance of the European Communities on 7 September                 Laure Levi, of the Brussels Bar, with an address for service
1998 by H', represented by Jean-NoeÈl Louis and                    in Luxembourg at the premises of Fiduciaire Myson
FrancËoise Parmentier, of the Brussels Bar, with an address         SARL, 30 rue de Cessange.


title: Judgment of the Court (Second Chamber) 21 February 2002 in Case C-416/98: Commission of the European Communities v Nea Energeiaki Technologia EPE (Article 181 of the EC Treaty (now Article 238 EC) — Arbitration clause — Reimbursement of advance payments made under a contract terminated by the Commission for non-performance)

text:
4.5.2002                EN                      Official Journal of the European Communities                                              C 109/1
                                                                         I
                                                                   (Information)
                                                     COURT OF JUSTICE
                                                               COURT OF JUSTICE
                 JUDGMENT OF THE COURT                                       1.    Orders Nea Energeiaki Technologia EPE to pay to the
                                                                                Commission of the European Communities, first, the sum of
                                                                                GRD 9 498 551 resulting from the agreement concluded
                        (Second Chamber)                                           between Nea Energeiaki Technologia EPE and the Commission
                                                                                on 27 March 1990, namely the principal sum of
                         21 February 2002                                          GRD 9 257 051 plus GRD 241 500 in respect of bank
                                                                                interest, and, second, interest on the principal amount due,
                                                                                calculated on the basis of the European Investment Bank rate
in Case C-416/98: Commission of the European Communi-                              applicable on 15 July 1985 for the period from 27 March
          ties v Nea Energeiaki Technologia EPE (1)                                1990 to 10 December 1998 and on the basis of the statutory
                                                                                rate under Greek law for the period from 11 December 1998,
                                                                                the date of service of the application on Nea Energeiaki
(Article 181 of the EC Treaty (now Article 238 EC) —                               Technologia EPE, until total discharge by the latter of its debt;
Arbitration clause — Reimbursement of advance payments
made under a contract terminated by the Commission for                       2.    Orders Nea Energeiaki Technologia EPE to pay the costs.
                         non-performance)
                                                                             (1) OJ C 20 of 23.1.1999.
                          (2002/C 109/01)
                    (Language of the case: Greek)
                                                                                JUDGMENT OF THE COURT
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)                                                     19 February 2002
                                                                             in Case C-35/99 (Reference for a preliminary ruling from
                                                                                the Pretore di Pinerolo): Manuele Arduino (1)
In Case C-416/98, Commission of the European Communities
(Agents: R.B. Wainwright and O. Couvert-Castéra, assisted by                 (Compulsory tariff for fees of members of the Bar —
M. Bra, avocat, and K. Kapoutzidou, dikigoros) v Nea Energeiaki              Decision of the National Council of the Bar — Approval by
Technologia EPE, established in Athens (Greece) (Agent:                      the Minister for Justice — Articles 5 and 85 of the EC Treaty
G. Papacharalampous, dikigoros): Application by the Com-                                      (now Articles 10 EC and 81 EC)
mission under Article 181 of the EC Treaty (now Article 238
EC) for repayment of an advance granted by it to the defendant                                          (2002/C 109/02)
in relation to a contract concerning the implementation, and
practical demonstration, of a pilot programme for wind-                                           (Language of the case: Italian)
generated energy entitled ‘Kea Island’, which provided for the
setting-up of a wind energy converter on a Greek island, the                 (Provisional translation; the definitive translation will be published
Court (Second Chamber), composed of: N. Colneric, President                                      in the European Court Reports)
of the Chamber, V. Skouris (Rapporteur) and J.N. Cunha
Rodrigues, Judges; P. Léger, Advocate General; L. Hewlett,
Administrator, for the Registrar, has given a judgment on                    In Case C-35/99: Reference to the Court under Article 177 of
21 February 2002, in which it:                                               the EC Treaty (now Article 234 EC) by the Pretore di Pinerolo


title: Case T-227/03: Action brought on 13 June 2003 by Brendelen Limited against the Commission of the European Communities

text:
4.10.2003                 EN                          Official Journal of the European Union                                        C 239/13
The applicant claims that the Court should:                                   —      order the Commission to pay the costs of these proceed-
                                                                                ings.
—      annul the decision contained in Article 2 of Commission
       Decision of 4 April 2003 on the requests received by the
       Commission to increase in MAGP IV objectives to take
       into account improvements on safety, navigation at sea,                Pleas in law and main arguments
       hygiene, product quality and working conditions for
       vessels of more than 12 m in length overall notified                   The applicant invokes the same pleas in law as in Case T-218/
       under document number C(2003) 1113 to reject a safety                  03 (1).
       capacity application for a proposed new RSW vessel,
       MFV Golden Rose;
                                                                              (1 ) See p. 9 of this Official Journal.
—      order the Commission to pay the costs of these proceed-
       ings.
Pleas in law and main arguments
                                                                              Action brought on 13 June 2003 by Eugene Hannigan
                                                                                against the Commission of the European Communities
The applicant invokes the same pleas in law as in Case T-218/
03 (1).
                                                                                (Case T-228/03)
( 1) See p. 9 of this Official Journal.                                                                   (2003/C 239/23)
                                                                                (Language of the case: English)
                                                                              An action against the Commission of the European Communi-
                                                                              ties was brought before the Court of First Instance of the
Action brought on 13 June 2003 by Brendelen Limited                           European Communities on 13 June 2003 by Eugene Hannigan,
   against the Commission of the European Communities                         Killybegs, (Ireland), represented by P. Gallagher and A. Collins,
                                                                              Barristers, and D. Barry, Solicitor.
                             (Case T-227/03)
                                                                              The applicant claims that the Court should:
                            (2003/C 239/22)
                                                                              —      annul the decision contained in Article 2 of Commission
                                                                                Decision of 4 April 2003 on the requests received by the
                      (Language of the case: English)                                Commission to increase in MAGP IV objectives to take
                                                                                into account improvements on safety, navigation at sea,
                                                                                hygiene, product quality and working conditions for
                                                                                vessels of more than 12 m in length overall notified
                                                                                under document number C(2003) 1113 to reject a safety
An action against the Commission of the European Communi-
                                                                                capacity application for a proposed new vessel MFV
ties was brought before the Court of First Instance of the
                                                                                Niamh Eoghan;
European Communities on 13 June 2003 by Brendelen
Limited, Greencastle, (Ireland), represented by P. Gallagher and
A. Collins, Barristers, and D. Barry, Solicitor.                              —      order the Commission to pay the costs of these proceed-
                                                                                ings.
The applicant claims that the Court should:
                                                                              Pleas in law and main arguments
—      annul the decision contained in Article 2 of Commission
       Decision of 4 April 2003 on the requests received by the
       Commission to increase in MAGP IV objectives to take                   The applicant invokes the same pleas in law as in Case T-218/
       into account improvements on safety, navigation at sea,                03 (1).
       hygiene, product quality and working conditions for
       vessels of more than 12 m in length overall notified
       under document number C(2003) 1113 to reject a safety                  (1 ) See p. 9 of this Official Journal.
       capacity application to lengthen the MFV Brendelen and
       for a proposed new vessel to replace the MFV Brendelen;


title: Case T-317/12: Action brought on 11 July 2012 — Holcim (Romania) v European Commission

text:
               22.9.2012

               EN

               Official Journal of the European Union

               C 287/31

         Action brought on 11 July 2012 — Holcim (Romania) v European Commission
   (Case T-317/12)
   2012/C 287/59
   Language of the case: English

      Parties

      Applicant: Holcim (Romania) SA (Bucharest, Romania) (represented by: L. Arnauts, lawyer)

      Defendant: European Commission

      Form of order sought

               —

               Order the defendant to pay the applicant the market value of the allegedly stolen European Emission Allowances that would not be recovered by the day of the judgment, at their market price, plus interest rate of 8 % per annum as from 16 November 2010;

               —

               Order the defendant to pay the costs of he proceedings; and

               —

               Declare the judgment enforceable.

      Pleas in law and main arguments

   In support of the action, the applicant relies on one main plea in law, alleging:

               —

               the European Union’s liability for unlawful decisions of the European Commission consisting in:

                           (a)

                           misinterpretation of Article 10(1) of Commission Regulation (EC) No 2216/2004 of 21 December 2004 for a standardised and secured system of registries pursuant to Directive 2003/87/EC of the European Parliament and of the Council and Decision No 280/2004/EC of the European Parliament and of the Council (OJ L 386, p. 1);

                           (b)

                           a breach of Article 20 of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ L 275, p. 32);

                           (c)

                           breaches of several general principles of law (principles of proportionality and of protection of legitimate expectations, duty of care, right to an effective judicial protection in respect of property rights), when deciding not to disclose or allow disclosure of the location of stolen European Emission Allowances in the framework of the European Union Emissions Trading Scheme.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 4 December 1997 in Case C-97/96 (reference for a preliminary ruling from the Oberlandesgericht Düsseldorf): Verband deutscher Daihatsu-Händler eV v. Daihatsu Deutschland GmbH (Company law - Annual accounts - Penalties for non-publication - Article 6 of the First Directive 68/151/EEC)

text:
7.2.98               EN                  Official Journal of the European Communities                                      C 41/5
    concerning indirect taxes on the raising of capital, as                       JUDGMENT OF THE COURT
    most recently amended by Council Directive 85/303/
                                                                                (Fifth Chamber)
    EEC of 10 June 1985, in order for charges levied on
    registration of public and private limited companies                                of 4 December 1997
    and on their capital being increased to be by way of
    fees or dues, their amount must be calculated solely on         in Case C-97/96 (reference for a preliminary ruling from
    the basis of the cost of the formalities in question. It        the Oberlandesgericht Düsseldorf): Verband deutscher
    may, however, also cover the costs of minor services             Daihatsu-Händler eV v. Daihatsu Deutschland GmbH (1)
    performed without charge. In calculating their
                                                                    (Company law Ð Annual accounts Ð Penalties for non-
    amount, a Member State is entitled to take account of
                                                                    publication Ð Article 6 of the First Directive 68/151/
    all the costs related to the effecting of registration,
                                                                                EEC)
    including the proportion of the overheads which may
    be attributed thereto. Furthermore, a Member State                                      (98/C 41/08)
    may impose flat-rate charges and fix their amount for
    an indefinite period, provided that it checks at regular
    intervals that they continue not to exceed the average                        (Language of the case: German)
    cost of the registrations at issue.
                                                                     (Provisional translation; the definitive translation will be
                                                                             published in the European Court Reports)
2. Community law precludes actions for the recovery of
    charges levied in breach of Directive 69/335/EEC, as            In Case C-97/96: reference to the Court under Article 177
    amended, from being dismissed on the ground that                of the EC Treaty from the Oberlandesgericht Düsseldorf
    those charges were imposed as a result of an excusable          (Düsseldorf Higher Regional Court) (Germany), for a
    error by the authorities of the Member State inasmuch           preliminary ruling in the proceedings pending before that
    as they were levied over a long period without either           court between Verband deutscher Daihatsu-Händler eV
    those authorities or the persons liable to them having          and Daihatsu Deutschland GmbH Ð on the interpretation
    been aware that they were unlawful.                             of Article 6 of the First Council Directive 68/151/EEC of
                                                                    9 March 1968 on coordination of safeguards which, for
                                                                    the protection of the interests of members and others, are
                                                                    required by Member States of companies within the
                                                                    meaning of the second paragraph of Article 58 of the
                                                                    Treaty, with a view to making such safeguards equivalent
3. Community law, as it now stands, does not prevent a              throughout the Community (OJ, English Special Edition
    Member State which has not properly transposed                  1968 (I), p. 41) Ð the Court (Fifth Chamber), composed
    Directive 69/335/EEC, as amended, from resisting                of: C. Gulmann, President of the Chamber, M. Wathelet
    actions for the repayment of charges levied in breach           (Rapporteur), J. C. Moitinho de Almeida, D. A. O.
    thereof by relying on a limitation period under                 Edward and J.-P. Puissochet, Judges; G. Cosmas,
    national law which runs from the date on which the              Advocate-General; H. A. Rühl, Principal Administrator,
    charges in question became payable, provided that               for the Registrar, has given a judgment on 4 December
    such a period is not less favourable for actions based          1997, in which it has ruled:
    on Community law than for actions based on national
    law and does not render virtually impossible or
    excessively difficult the exercise of rights conferred by
                                                                    1. Article 6 of the First Council Directive 68/151/EEC of
    Community law.
                                                                        9 March 1968 on coordination of safeguards which,
                                                                        for the protection of the interests of members and
                                                                        others, are required by Member States of companies
                                                                        within the meaning of the second paragraph of
                                                                        Article 58 of the Treaty, with a view to making such
                                                                        safeguards equivalent throughout the Community,
4. Article 10 of Directive 69/335/EEC, as amended, in                   must be interpreted as precluding the legislation of a
    conjunction with Article 12 (1)(e) thereof gives rise to            Member State from restricting to members or creditors
    rights on which individuals may rely before national                of a company, the central works council or the
    courts.                                                             company's works council the right to apply for
                                                                        imposition of the penalty provided for by the law of
                                                                        that Member State in the event of failure by a
(1) OJ C 229, 2.9.1995.                                                 company to fulfil the obligations regarding disclosure
                                                                        of annual accounts laid down by the First Directive
                                                                        68/151/EEC.
                                                                    2. Since a directive cannot of itself impose obligations on
                                                                        an individual, and cannot therefore be relied upon as
 ---pagebreak--- C 41/6                EN                   Official Journal of the European Communities                                    7.2.98
     such against such a person, there is no need to                  Ð the public placement offices are manifestly unable to
     examine whether Article 6 of the First Directive 68/                 satisfy demand on the market for all types of activity,
     151/EEC has direct effect.                                           and
(1) OJ C 145, 18.5.1996.
                                                                      Ð the actual placement of employees by private
                                                                          companies is rendered impossible by the maintenance
                                                                          in force of statutory provisions under which such
                                                                          activities are prohibited and non-observance of that
                                                                          prohibition gives rise to penal and administrative
                                                                          sanctions, and
               JUDGMENT OF THE COURT
                        (Sixth Chamber)
                                                                      Ð the placement activities in question could extend to
                    of 11 December 1997                                   the nationals or to the territory of other Member
                                                                          States.
in Case C-55/96 (reference for a preliminary ruling from
the Corte d'Appello, Milan): Non-contentious proceedings
    brought before that court by Job Centre Coop. arl (1)             (1) OJ C 133, 4.5.1996.
(Freedom to provide services Ð Placement of employees
Ð Exclusion of private undertakings Ð Exercise of
                       official authority)
                          (98/C 41/09)
                                                                                JUDGMENT OF THE COURT
                (Language of the case: Italian)
                                                                                (Sixth Chamber)
                                                                                of 11 December 1997
  (Provisional translation; the definitive translation will be        in Case C-246/96 (reference for a preliminary ruling to
          published in the European Court Reports)                    the Court by the Office of the Industrial Tribunals and the
                                                                      Fair Employment Tribunal): Mary Teresa Magorrian and
                                                                      Irene Patricia Cunningham against Eastern Health and
                                                                      Social Services Board, Department of Health and Social
In Case C-55/96: reference to the Court under Article 177                                       Services (1)
of the EC Treaty by the Corte d'Appello, Milan, Italy, for
a preliminary ruling in the non-contentious proceedings               (Equal pay for male and female workers Ð Article 119 of
(giurisdizione volontaria) brought before that court by Job           the EC Treaty Ð Protocol 2 annexed to the Treaty on
Centre Coop. arl Ð on the interpretation of Articles 48,              European Union Ð Occupational social security schemes
49, 55, 56, 59, 60, 62, 66, 86 and 90 of the EC Treaty Ð              Ð Exclusion of part-time workers from status conferring
the Court (Sixth Chamber) composed of: R. Schintgen,                  entitlement to certain additional pension benefits Ð Date
President of the Second Chamber, acting as President of               from which such benefits must be calculated Ð National
the Sixth Chamber, G. F. Mancini and P. J. G. Kapteyn                                     procedural time-limits)
(Rapporteur), Judges; B. Elmer, Advocate-General; L.
Hewlett, Administrator, gave a judgment on 11 December                                         (98/C 41/10)
1997, the operative part of which is as follows:
                                                                                (Language of the case: English)
Public placement offices are subject to the prohibition
contained in Article 86 of the EC Treaty, so long as
application of that provision does not obstruct the
performance of the particular task assigned to them. A                In Case C-246/96: reference to the Court under Article 177
Member State which prohibits any activity as an                       of the EC Treaty by the Office of the Industrial Tribunals
intermediary between supply and demand on the                         and the Fair Employment Tribunal, Belfast, for a
employment market, whether as an employment agency or                 preliminary ruling in the proceedings pending before that
as an employment business, unless carried on by those                 court between Mary Teresa Magorrian, Irene Patricia
offices, is in breach of Article 90 (1) of the Treaty where it        Cunningham and Eastern Health and Social Services
creates a situation in which those offices cannot avoid               Board, Department of Health and Social Services, on the
infringing Article 86 of the Treaty. That is the case, in             interpretation of Article 119 of the EC Treaty and of
particular, in the following circumstances:                           Protocol 2 concerning Article 119 of that Treaty, annexed


title: Corrigendum to Notice No 2001/C 150/30

text:
C 173/38         EN                      Official Journal of the European Communities            16.6.2001
                                         Corrigendum to Notice No 2001/C 150/30
                                                         (2001/C 173/68)
                             (Official Journal of the European Communities C 150 of 19 May 2001)
         On the cover page under Notice No 2001/C 150/30 and on page 16:
         for:    ‘Case C-10/01’
         read:   ‘Case C-130/01’


title: Case T-96/00: Action brought on 19 April 2000 by Danielle Dubigh against the Commission of the European Communities

text:
24.6.2000             EN                      Official Journal of the European Communities                                         C 176/27
Action brought on 19 April 2000 by Danielle Dubigh                       Pleas in law and main arguments
  against the Commission of the European Communities
                                                                         The subject-matter of the contested decision is an investment
                         (Case T-96/00)
                                                                         subsidy of DEM 9 million granted by the Bundesanstalt für
                                                                         vereinigungsbedingte Sonderaufgaben (‘BvS’), alternatively by
                        (2000/C 176/46)                                  its subsidiary Leuna-Werke GmbH, to Linde AG in connection
                                                                         with the construction of a new carbon monoxide plant
                                                                         in Leuna (Saxony-Anhalt). In the contested decision, the
                   (Language of the case: French)                        Commission accepted 35 % of the total investment costs as
                                                                         being permissible State regional aid for Saxony-Anhalt. The
                                                                         applicant contests that part of the decision in which the
An action against the Commission of the European Communi-
                                                                         Commission declares the remainder of the investment subsidy
ties was brought before the Court of First Instance of the
                                                                         to be incompatible with the common market and requires the
European Communities on 19 April 2000 by Danielle Dubigh,
                                                                         Federal Republic of Germany to demand that it be repaid.
residing in Brussels, represented by Jean-Noël Louis and
Véronique Peere, of the Brussels Bar.
                                                                         In support of its claim, the applicant asserts that the investment
The applicant claims that the Court should:                              subsidy does not constitute State aid within the meaning of
                                                                         Article 87 EC. Instead, what is involved is a measure based
— annul the decision of the selection board in competition               solely on commercial considerations which has been taken by
    COM/C/2/99 rejecting the application submitted by the                the BvS in the context of negotiations following on from
    applicant;                                                           a privatisation agreement concluded in 1993 between its
                                                                         predecessor, the Treuhandanstalt, and UCB Chemie GmbH.
— order the defendant to pay the costs.                                  Consequently, on the basis of the relevant findings made by
                                                                         the Commission with regard to the ‘Treuhand scheme’, the
                                                                         subsidy cannot be categorised as State aid.
Pleas in law and main arguments
                                                                         Moreover, the Commission has made no findings, or no
The pleas in law and main arguments are the same as in Case              adequate findings, regarding the incompatibility of the alleged
T-95/00 Zaur-Gora v Commission.                                          aid with the common market. The assumption that any grant
                                                                         of aid to the applicant for the construction of a new carbon
                                                                         monoxide plant is liable to distort competition is based on an
                                                                         erroneous assessment of the market concerned. In addition,
                                                                         no relevant findings have been made with regard to any
                                                                         adverse effect on trade between Member States.
Action brought on 21 April 2000 by Linde AG against the
         Commission of the European Communities
                         (Case T-98/00)
                        (2000/C 176/47)
                                                                         Action brought on 20 April 2000 by Franco Campoli
                                                                           against the Commission of the European Communities
                  (Language of the case: German)
An action against the Commission of the European Communi-                                         (Case T-100/00)
ties was brought before the Court of First Instance of the
European Communities on 21 April 2000 by Linde AG, of
Wiesbaden (Federal Republic of Germany), represented by                                           (2000/C 176/48)
Hans-Jürgen Rabe, Rechtsanwalt, of Messrs Gaedertz Rechtsan-
wälte, Brussels.
                                                                                (Language of the case: French)
The applicant claims that the Court should:
— annul Articles 2 and 3 of Decision K(2000) 64 final of                 An action against the Commission of the European Communi-
    18 January 2000 concerning State aid granted by Germany              ties was brought before the Court of First Instance of the
    in favour of Linde AG;                                               European Communities on 20 April 2000 by Franco Campoli,
                                                                         residing in Brussels, represented by Sergio Diana, of the
— order the defendant to pay the costs.                                  Brussels Bar.


title: Case C-165/02: Action brought on 2 May 2002 by the Kingdom of Spain against the Commission of the European Communities

text:
C 144/28                EN                     Official Journal of the European Communities                                      15.6.2002
3)    Must the person who acquired the specimen more than                 —     point H(e) of that annex (relating to Italy) includes,
      50 years previously be the present owner?                                 amongst the benefits under the Italian system which are
                                                                                subject to residence requirements, benefits supplementing
                                                                                the minimum pension;
4)    Do the provisions on exemption in Article 32 of Regu-
      lation No 1808/2001 (2) mean that no assessment by the
                                                                          —     benefits supplementing the minimum pension do not
      authority in accordance with Article 2(w) of Regulation
                                                                                possess the characteristics of an autonomous benefit, but
      No 338/97 is required?
                                                                                must instead be regarded as an integral element of the
                                                                                benefit to be awarded,
(1) Council Regulation (EC) No 338/97 of 9 December 1996 on the           —     the Court of Justice is requested to give a preliminary
    protection of species of wild fauna and flora by regulating trade           ruling on the validity of Annex IIa of Regulation No 1408/
    therein (OJ L 061 of 3.3.1997, p. 1).                                       71, inasmuch as it includes amongst the ‘non-exportable’
(2) Commission Regulation (EC) No 1808/2001 of 30 August 2001                   benefits listed in point H(e) (relating to Italy) the sup-
    laying down detailed rules concerning the implementation of                 plement to the minimum pension as provided for by the
    Council Regulation (EC) No 338/97 on the protection of species              Italian legislation;
    of wild fauna and flora by regulating trade therein (OJ L 250 of
    19.9.2001, p. 1).
                                                                          in other words, a ruling is requested on the question whether
                                                                          that annex is compatible with Articles 39 and 42 of the EC
                                                                          Treaty inasmuch as it precludes the exportability not of a
                                                                          special non-contributory benefit but rather of an element of a
                                                                          contributory benefit (in this case, an old-age pension) which
                                                                          cannot be subject to any residence requirement.
                                                                          (1) OJ L 149 of 5.7.1971, p. 2.
                                                                          (2) OJ L 136 of 19.5.1992, p. 1.
Reference for a preliminary ruling by the Tribunale di
Roma by order of that Court of 5 April 2002 in the
case of Lidia Marcaletti against Istituto nazionale della
                    previdenza sociale (INPS)
                         (Case C-158/02)
                                                                          Action brought on 2 May 2002 by the Kingdom of Spain
                                                                            against the Commission of the European Communities
                         (2002/C 144/47)
                                                                                (Case C-165/02)
                                                                                (2002/C 144/48)
Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale di Roma
(Rome District Court) of 5 April 2002, received at the Court
Registry on 29 April 2002, for a preliminary ruling in the case
of Lidia Marcaletti against Istituto nazionale della previdenza           An action against the Commission of the European Communi-
sociale (INPS) (National Social Welfare Institution) on the               ties was brought before the Court of Justice of the European
following questions: Whereas:                                             Communities on 2 May 2002 by the Kingdom of Spain,
                                                                          represented by Rosario Silva de Lapuerta, Abogado del Estado,
                                                                          with an address for service in Luxembourg at the Spanish
—     Article 4 of Regulation (EEC) No 1408/71 (1) lists the              Embassy, 4-6, boulevard E. Servais.
      benefits from amongst the various branches of social
      security which fall within the substantive scope of that
      regulation;                                                         The applicant claims that the Court should:
                                                                          —    annul Commission Regulation (EC) No 494/2002 (1) of
—     Article 1(t) sets out a Community definition of the terms
                                                                                19 March 2002 establishing additional technical
      ‘benefits’ and ‘pensions’;
                                                                                measures for the recovery of the stock of hake in ICES
                                                                                sub-areas III, IV, V, VI and VII and ICES divisions VIII a,
—     Annex IIa, introduced by Regulation No 1247/92 (2) of                     b, d, e;
      30 April 1992, refers to the special non-contributory
      benefits which are subject to residence conditions;                 —    order the defendant institution to pay the costs.
 ---pagebreak--- 15.6.2002               EN                   Official Journal of the European Communities                                     C 144/29
Pleas in law and main arguments                                                Removal from the register of Case C-233/99 (1)
                                                                                (2002/C 144/50)
—     Incorrect legal basis and lack of competence of the
      Commission: The contested regulation has as its legal
      basis Article 45(1) of Council Regulation (EC) No 850/98
      for the conservation of fishery resources through techni-
                                                                        By order of 21 March 2002 the President of the Court of
      cal measures for the protection of juveniles of marine
                                                                        Justice of the European Communities ordered the removal
      organisms. That provision confers on the Commission
                                                                        from the register of Case C-233/99 (Reference for a preliminary
      limited legislative power which that institution may use
                                                                        ruling by Københavns Byret): Anklagemyndigheden (Public
      only in such cases and under such conditions as provided
                                                                        Prosecution Department) v Tonny Haugsted Hansen.
      in that provision, whilst general power to legislate in the
      matter of fisheries resides with the Council in accordance
      with the procedure laid down in Article 37 EC. In the
      present case, the Commission refers to a report of                (1) OJ C 246 of 28.8.1999.
      November 2000 by the International Council for the
      Exploration of the Sea and to Regulation No 1162/2001
      (which, in the Commission’s own words ‘cannot produce
      any effect whatsoever’ — see OJ L 47 of 19.2.2002,
      p. 21). No other data are produced to substantiate the
      statement made on 19 March that conservation of hake
      resources in the ICES areas affected required immediate
      action by the Commission.
                                                                               Removal from the register of Case C-369/99 (1)
—     Breach of the principle of non-discrimination:
                                                                                (2002/C 144/51)
—     Lack of a statement of reasons
                                                                        By order of 19 March 2002 the President of the Court of
The main arguments put forward in support of the last two
                                                                        Justice of the European Communities ordered the removal
pleas are similar to those in Case C-304/01 (2).
                                                                        from the register of Case C-369/99: Kingdom of Spain v
                                                                        Commission of the European Communities.
(1) OJ L 77, p. 8 of 20.3.2002.
(2) OJ C 289 of 13.10.2001, p. 15.                                      (1) OJ C 6 of 8.1.2000.
        Removal from the register of Case C-61/99 (1)                          Removal from the register of Case C-407/99 (1)
                          (2002/C 144/49)                                                        (2002/C 144/52)
By order of 8 February 2002 the President of the Court of               By order of 11 December 2001 the President of the Court of
Justice of the European Communities ordered the removal                 Justice of the European Communities ordered the removal
from the register of Case C-61/99 (Referral for a preliminary           from the register of Case C-407/99 (Referral for a preliminary
ruling by the Landgericht Mainz): Deutsche Post AG v Landal             ruling by the Bundessozialgericht): Vetharanigam Pathminidevi
Green Parks GmbH.                                                       v Landeskreditbank Baden-Württemberg — Förderbank.
(1) OJ C 121 of 1.5.1999.                                               (1) OJ C 34 of 5.2.2000.


title: Case T-102/02: Action brought on 5 April 2002 by EVC International N.V. against the Commission of the European Communities

text:
C 156/32               EN                      Official Journal of the European Communities                                     29.6.2002
The applicant claims that the Court should:                               Action brought on 5 April 2002 by EVC International N.V.
                                                                          against the Commission of the European Communities
—     annul under Article 230 of the EC Treaty the Commission
                                                                                (Case T-102/02)
      Decision in case no. COMP/M.2533-BP/E.ON in its
      entirety and/or insofar it concerns the market for the
      supply of merchant ethylene;
                                                                                (2002/C 156/61)
—     order the Commission to pay the costs.                                                 (Language of the case: English)
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
Pleas in law and main arguments                                           European Communities on 5 April 2002 by EVC International
                                                                          N.V., represented by Mr Julian Ellison, Mr Mark Clough QC
                                                                          and Mr Matthew Hall of Ashurst Morris Crisp, Brussels
                                                                          (Belgium).
The applicant in the present case is a purchaser of merchant
ethylene on the ARG+ pipeline network in Belgium, the
                                                                          The applicant claims that the Court should:
Netherlands and western Germany.
                                                                          —     annul under Article 230 of the EC Treaty the Commission
                                                                                Decision in case no. COMP/M.2533-BP/E.ON in its
                                                                                entirety and/or insofar it concerns the market for the
The applicant contests the Decision of the Commission                           supply of merchant ethylene;
declaring an operation where BP, together with E.ON, would
acquire joint control of Veba Oel under certain conditions
compatible with the common market and the EEA Agreement.                  —     order the Commission to pay the costs.
These conditions were necessary since the operation gave rise
to substantial competition concerns on the ARG+ merchant
ethylene market. In particular, there was a risk of creating a
joint dominant position of BP/Veba Oel and Shell/DEA (case
no. COMP/M. 2389-Shell/DEA (1).
                                                                          Pleas in law and main arguments
                                                                          The applicant in the present case is a purchaser of merchant
The decisions in the BP/E.ON case is closely related to the               ethylene outside the ARG+ pipeline network.
decision in the Shell/DEA case. These cases were treated
similarly and the remedies imposed in each case are only
effective if the remedies in the other case are operative as well.
Therefore, the applicant puts forward the same arguments as               The applicant contests the Decision of the Commission
in Case T-99/02.                                                          declaring an operation where BP, together with E.ON, would
                                                                          acquire joint control of Veba Oel under certain conditions
                                                                          compatible with the common market and the EEA Agreement.
                                                                          These conditions were necessary since the operation gave rise
                                                                          to substantial competition concerns on the ARG+ merchant
                                                                          ethylene market. In particular, there was a risk of creating a
(1) Under the operation examined by the Commission in this case,          joint dominant position of BP/Veba Oel and Shell/DEA (case
    Deutsche Shell would acquire sole control of the undertaking          no. COMP/M. 2389-Shell/DEA (1).
    DEA Mineraloel. The decision in case nr COMP/M. 2389-Shell/
    DEA is also contested by this Applicant in Case T-99/02.
                                                                          The Decision in the BP/E.ON case is closely related to the
                                                                          decision in the Shell/DEA case. These cases were treated
                                                                          similarly and the remedies imposed in each case are only
                                                                          effective if the remedies in the other case are operative as well.
 ---pagebreak--- 29.6.2002               EN                      Official Journal of the European Communities                                        C 156/33
Therefore, the applicant puts forward the same pleas and                   The contested Decision contains, according to the applicant,
arguments as in Case T-100/02, which are again the same as                 several errors of assessment and errors in law. Firstly, the
those put forward in Case T-99/02.                                         Commission erred in concluding that the merchant supply of
                                                                           cumene to one of the applicant’s production sites does
                                                                           not constitute a separate economic market. Secondly, the
                                                                           Commission failed to consider whether a dominant position
(1) Under the operation examined by the Commission in this case,           would be created in this market and failed to conclude that
    Deutsche Shell would acquire sole control of the undertaking           a dominant position had been created. Alternatively, the
    DEA Mineraloel. The decision in case no. COMP/M. 2389-Shell/           Commission failed to define a wider relevant market for the
    DEA is also contested by this applicant in Case T-100/02.              sale of cumene and failed to analyse the creation of a dominant
                                                                           position in such a market.
                                                                           The applicant also puts forward a plea concerning the
                                                                           infringement of an essential procedural requirement, the
Action brought on 5 April 2002 by Ineos Phenol GmbH                        misuse of powers and the violation of the principle of sound
& Co KG against the Commission of the European                             administration. According to the applicant, the Commission
                           Communities                                     should have requested information from third parties in
                                                                           relation to the sale of cumene by BP and Veba Oel.
                          (Case T-103/02)
                          (2002/C 156/62)                                  Finally, the applicant claims that there was a lack of reasoning
                                                                           in the contested Decision since the Commission failed to
                                                                           analyse the supply of merchant cumene by BP and Veba Oel
                   (Language of the case: English)                         and failed to address the issues raised in the present application.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 5 April 2002 by Ineos Phenol
GmbH & Co KG, represented by Mr Julian Ellison, Mr Mark
Clough QC and Mr Matthew Hall of Ashurst Morris Crisp,
Brussels (Belgium).
The applicant claims that the Court should:
                                                                           Action brought on 8 April 2002 by SFT Gondrand Frères
—     annul under Article 230 of the EC Treaty the Commission
                                                                             against the Commission of the European Communities
      Decision in case no. COMP/M.2533-BP/E.ON insofar as
      it relates implicitly to the merchant supply of cumene;
—     order the Commission to pay the costs.                                                        (Case T-104/02)
Pleas in law and main arguments                                                                     (2002/C 156/63)
The applicant is a significant purchaser of a petrochemical                                   (Language of the case: French)
product called cumene from BP and Veba Oel AG.
The applicant contests the Decision of the Commission
declaring an operation where BP, together with E.ON, would
acquire joint control of Veba Oel under certain conditions
compatible with the common market and the EEA Agreement.                   An action against the Commission of the European Communi-
The grounds of the present application relate to the omission of           ties was brought before the Court of First Instance of the
the Commission to consider, in this Decision, the competition              European Communities on April 2002 by SFT Gondrand
issues raised by the combination of BP and Veba Oel, so far as             Frères of Paris, represented by Mireille Famchon, lawyer, with
their supply of merchant cumene is concerned.                              an address for service in Luxembourg.


title: Case C-273/09: Judgment of the Court (Third Chamber) of 22 December 2010 (reference for a preliminary ruling from the Rechtbank Haarlem (Netherlands)) — Premis Medical BV v Inspecteur van de Belastingdienst/Douane Rotterdam, Kantoor Laan op Zuid (Regulation (EC) No 729/2004 — Classification of the product ‘walker-rollator’ in the Combined Nomenclature — Heading 9021 — Heading 8716 — Corrigendum — Validity)

text:
               26.2.2011

               EN

               Official Journal of the European Union

               C 63/5

         Judgment of the Court (Third Chamber) of 22 December 2010 (reference for a preliminary ruling from the Rechtbank Haarlem (Netherlands)) — Premis Medical BV v Inspecteur van de Belastingdienst/Douane Rotterdam, Kantoor Laan op Zuid
   (Case C-273/09) (1)

   (Regulation (EC) No 729/2004 - Classification of the product ‘walker-rollator’ in the Combined Nomenclature - Heading 9021 - Heading 8716 - Corrigendum - Validity)
   2011/C 63/09
   Language of the case: Dutch

      Referring court

   Rechtbank Haarlem

      Parties to the main proceedings

      Applicant: Premis Medical BV

      Defendant: Inspecteur van de Belastingdienst/Douane Rotterdam, Kantoor Laan op Zuid

      Re:

   Reference for a preliminary ruling — Rechtbank Haarlem (Netherlands) — Interpretation of Commission Regulation (EC) No 729/2004 of 15 April 2004 concerning the classification of certain goods in the Combined Nomenclature (OJ 2004 L 113, p. 5) — Orthopaedic appliances or appliances designed to compensate for a defect or disability within the meaning of Heading 9021 of the Combined Nomenclature — Mobile walking aids designed to designed to assist those with limited mobility

      Operative part of the judgment

   Commission Regulation (EC) No 729/2004 of 15 April 2004 concerning the classification of certain goods in the Combined Nomenclature, in the version resulting from a corrigendum published on 7 May 2004, is invalid in so far as, first, that corrigendum extended the scope of application of the initial regulation to walker-rollators consisting of an aluminium frame on four wheels, two of which are front swivel wheels, handles and brakes, and designed to assist persons who have difficulties in walking and, secondly, it classifies those walker-rollators under subheading 8716 80 00 of the Combined Nomenclature.

      (1)  OJ C 267, 7.11.2009.


title: Judgment of the Court (Sixth Chamber) of 15 February 2001 in Case C-230/99: Commission of the European Communities v French Republic (Failure of a Member State to fulfil its obligations — Infringement of Article 30 of the EC Treaty (now, after amendment, Article 28 EC) — National legislation concerning rubber materials and rubber articles entering into contact with foodstuffs, food products and beverages — Mutual recognition — No proper letter of formal notice — Action inadmissible)

text:
16.6.2001               EN                      Official Journal of the European Communities                                            C 173/7
                 JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                       of 15 February 2001                                                            (Sixth Chamber)
                                                                                of 15 February 2001
in Case C-99/98: Republic of Austria v Commission of the
                   European Communities (1)
                                                                           in Case C-230/99: Commission of the European Communi-
                                                                                ties v French Republic (1)
(Action for annulment — Plan to grant State aid in the field
of power semiconductors — Notification of the Commission
— Content of the notification and of supplementary ques-                   (Failure of a Member State to fulfil its obligations —
tions put by the Commission — Nature and duration of                       Infringement of Article 30 of the EC Treaty (now, after
the investigation — Commission’s right of objection —                      amendment, Article 28 EC) — National legislation concern-
    Article 93(3) of the EC Treaty (now Article 88(3) EC))                 ing rubber materials and rubber articles entering into contact
                                                                           with foodstuffs, food products and beverages — Mutual
                                                                           recognition — No proper letter of formal notice — Action
                          (2001/C 173/10)                                                               inadmissible)
                                                                                (2001/C 173/11)
                   (Language of the case: German)
                                                                                (Language of the case: French)
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)
                                                                           (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
In Case C-99/98: Republic of Austria (Agent: W. Okresek) v
Commission of the European Communities (Agents: V. Kreu-                   In Case C-230/99: Commission of the European Communities
schitz and P.F. Nemitz) — application for annulment of                     (Agents: H. van Lier and O. Couvert-Castéra) v French Republic
Commission Decision SG(98) D/1124 of 9 February 1998 to                    (Agents: J.-F. Dobelle, R. Loosli-Surrans and K. Rispal-Bellang-
open a formal investigation procedure under Article 93(2) of               er) — application for a declaration that, by adopting the Order
the EC Treaty (now Article 88(2) EC) in respect of State aid               of 9 November 1994 concerning rubber materials and rubber
C 84/97 (ex N 509/96) in favour of Siemens Bauelemente                     articles entering into contact with foodstuffs, food products
OHG, established in Villach, Austria — the Court, composed                 and beverages (Journal Officiel de la République Française of
of: C. Gulmann, President of the Sixth Chamber, acting as                  2 December 1994, p. 17029) without expressly providing for
President, A. La Pergola, M. Wathelet and V. Skoutis (Rappor-              recognition of technical rules, standards and manufacturing
teur), D.A.O. Edward, J.-P. Puissochet, P. Jann, L. Sevón and             processes lawfully followed in the other Member States and
R. Schintgen, Judges; F.G. Jacobs, Advocate General; H. von                recognition of the results of the related checks and tests carried
Holstein, Deputy Registrar, has given a judgment on 15 Febru-              out by an inspectorate or a laboratory officially recognised in
ary 2001, in which it:                                                     another Member State, the French Republic has failed to fulfil
                                                                           its obligations under Article 30 of the EC Treaty (now, after
                                                                           amendment, Article 28 EC) — the Court (Sixth Chamber),
1.    Annuls Commission Decision SG(98) D/1124 of 9 February
                                                                           composed of: C. Gulmann, President of the Chamber, V. Skou-
      1998 to open a formal investigation procedure under
                                                                           ris, J.-P. Puissochet, R. Schintgen and F. Macken (Rapporteur),
      Article 93(2) of the EC Treaty (now Article 88(2) EC) in
                                                                           Judges; S. Alber, Advocate General; H. von Holstein, Deputy
      respect of State aid C 84/97 (ex N 509/96) in favour of
                                                                           Registrar, has given a judgment on 15 February 2001, in
      Siemens Bauelemente OHG;
                                                                           which it:
2.    Orders the Commission of the European Communities to pay             1.     Dismisses the action as inadmissible;
      the costs.
                                                                           2.     Orders the parties to bear their own costs.
(1) OJ C 209 of 4.7.1998.
                                                                           (1) OJ C 226 of 7.8.1999.


title: Case T-239/01: Action brought on 2 October 2001 by SGL Carbon AG against the Commission of the European Communities

text:
C 3/34                 EN                     Official Journal of the European Communities                                        5.1.2002
Trade mark or sign             Registered German trade mark              by the authorities in the USA had ended inter alia with the
asserted by way of oppo-       ‘TUFFTRIDE’ in classes 1, 7 and 11        imposition of a fine on the applicant.
sition in the opposition
proceedings:
                                                                         In response to the statement of objections the applicant stated
Decision of the Oppo-          rejection of the Opposition               to the defendant that it expressly did not contest the facts set
sition Division:                                                         out by the defendant. At the same time it submitted that the
                                                                         fine imposed in the USA should be credited when the
Decision of the Board of       rejection of the Appeal by the            defendant calculated the fines or at least be appropriately taken
Appeal:                        applicant                                 into account.
Grounds of claim:              Articles 8(1)(b) and 7(1)(f) of
                                                                         In the contested decision the defendant alleged that the
                               Regulation (EC) no. 40/94 (1)
                                                                         applicant had participated in a cartel and, when it calculated
                                                                         the fine, assumed that there was a world market in graphite
(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the          electrodes. A fine of Euro 80,2 million was imposed on the
    Community trade mark (OJ L 11, p. 1).                                applicant.
                                                                         The applicant contests the decision has a whole in law. It
                                                                         submits that the defendant did not take into account the
                                                                         fact that the applicant had already been penalised in other
                                                                         jurisdictions for the same act. In particular, it gave no credit at
                                                                         all for the fines already imposed in other States and did not
Action brought on 2 October 2001 by SGL Carbon AG                        take account of the applicability of the rule against double
  against the Commission of the European Communities                     punishment (‘ne bis im idem’). As a separate matter, the
                                                                         defendant infringed Article 253 EC and Article 15(2) of
                                                                         Regulation No 17/62 because it wrongly calculated the fine in
                         (Case T-239/01)                                 the light of the application of the guidelines on the method of
                                                                         setting fines (1) and the notice on the non-imposition or
                           (2002/C 3/59)                                 reduction of fines in cartel cases (2). It infringed central
                                                                         principles of equal treatment and proportionality and commit-
                                                                         ted errors of law and of assessment to the detriment of the
                   (Language of the case: German)                        applicant at each stage of calculating the fine. Moreover, the
                                                                         defendant misassessed inter alia the extent of the applicant’s
                                                                         cooperation.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               (1) OJ C 9 of 14.1.1998,p. 3.
European Communities on 2 October 2001 by SGL Carbon                     (2) OJ C 207 of 18.7.1996, p. 4.
AG, Wiesbaden (Germany), represented by M. Klusmann,
F. Wiemer and C. Canenbley, lawyers.
The applicant claims that the Court should:
—     annul decision C(2001) 1986 final of 18 July 2001;                 Action brought on 3 October 2001 by Rica Foods (Free
                                                                         Zone) N.V. against the Commission of the European
—     in the alternative, reduce appropriately the amount of the                                   Communities
      fine imposed on the applicant in the contested decision;
                                                                                (Case T-242/01)
—     order the defendant to pay the costs of the proceedings.
                                                                                (2002/C 3/60)
Pleas in law and main arguments                                                             (Language of the case: Dutch)
The applicant manufactures various carbon and graphite
products, including graphite electrodes. In the course of a              An action against the Commission of the European Communi-
procedure seeking information under Article 11 of Regulation             ties was brought before the Court of First Instance of the
No 17/62 concerning suspected anti-competitive agreements                European Communities on 3 October 2001 by Rica Foods
between undertakings on the market for graphite electrodes,              (Free Zone) N.V., established in Oranjestad (Aruba), represent-
the applicant stated to the defendant that it was willing to             ed by G. van der Wal, with an address for service in
cooperate in the investigation of the case. A similar procedure          Luxembourg.


title: Case T-104/01: Action brought on 14 May 2001 by Claudia Oberhauser against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
11.8.2001             EN                      Official Journal of the European Communities                                         C 227/23
Action brought on 5 May 2001 by Michael Cwik against                     Action brought on 14 May 2001 by Claudia Oberhauser
       the Commission of the European Communities                        against the Office for Harmonisation in the Internal
                                                                                Market (Trade Marks and Designs)
                        (Case T-103/01)
                                                                                (Case T-104/01)
                        (2001/C 227/44)
                                                                                (2001/C 227/45)
                   (Language of the case: French)
                                                                         (Language of the case to be determined in accordance with Article
An action against the Commission of the European Communi-
                                                                           131(2) of the Rules of Procedure Application drafted in German)
ties was brought before the Court of First Instance of the
European Communities on 5 May 2001 by Michael Cwik,
residing at Tervuren (Belgium), represented by Nicolas Lhoëst,           An action against the Office for Harmonisation in the Internal
avocat, with an address for service in Luxembourg.                       Market (Trade Marks and Designs) was brought before the
                                                                         Court of First Instance of the European Communities on
The applicant claims that the Court should:                              14 May 2001 by Claudia Oberhauser, residing in Munich
                                                                         (Germany), represented by Markus Graf, Rechtsanwalt.
—     annul the Commission’s decision of 13 June 2000                    Additional party before the Board of Appeal: Petit Liberto,
      transferring the applicant from the Information, Publi-            S.A., Gerona (Spain).
      cations and Economic Documentation Unit [subsequently
      renamed the Euro and EMU Unit (DG ECFIN-04)] to the
      General Coordination, Human Resources and Adminis-                 The applicant claims that the Court should:
      tration Unit [subsequently renamed, in March 2000,
      the Coordination, Human Resources, Information and                 —     set aside the decision of the Second Board of Appeal of
      Administration Unit (DG ECFIN-01)];                                      the Office for Harmonisation in the Internal Market of
                                                                               28 February 2001 in Case R 757/1999-2;
—     in so far as may be necessary, annul the implicit decision
      of the Commission rejecting the complaint submitted by             —     order the defendant to pay the costs of these proceedings,
      the applicant on 26 September 2000;                                      and order the intervener to pay the costs of the proceed-
                                                                               ings before the Office for Harmonisation in the Internal
—     order the defendant to pay the sum of EUR 25 000 by                      Market.
      way of compensation for non-material damage;
—     order the defendant to pay all the costs.
                                                                         Pleas in law and main arguments
Pleas in law and main arguments
                                                                         Applicant for regis-           The applicant.
                                                                         tration of a Community
The applicant maintains that, by not responding to the                   trade mark:
complaint made by him against his transfer, the Commission
failed to discharge its obligation to provide a statement of             Trade mark for which           The word mark ‘Fifties’ for goods
reasons for any decision adversely affecting an official, as laid        registration sought:           in Class 25 (Jeans — Items of
down in Article 25(2) of the Staff Regulations. He also pleads                                          clothing) — Application No
misuse of powers. According to the applicant, the Commission                                            490003.
exerted real pressure on him, by denying him access to the
information necessary in order to enable him to perform his
                                                                         Owner of the mark put          Petit Liberto, S.A.
information and communication tasks, with a view to isolating
                                                                         forward as grounds for
him and harassing him. The applicant further argues that his
                                                                         refusal under the oppo-
functions as an economic and monetary specialist did not
                                                                         sition procedure:
correspond to the work which he was given to do following
his transfer to the ECFIN-01 unit. Lastly, the applicant claims
that, when deciding on his situation, the Commission failed to           Trade mark put forward         The registered Spanish word and
comply with its obligation to have regard to the interests               as grounds for refusal:        pictorial mark ‘miss fifties’
and welfare of officials, inasmuch as it did not take into                                              (No 1,723,310) for goods in
consideration the interests of the service or the interests of the                                      Class 25.
applicant. According to the applicant, that situation resulted
from a bad personal relationship existing for several years              Decision of the Oppo-          Refusal of the application.
between him and his hierarchical superiors.                              sition Division:
                                                                         Decision of the Board of       Dismissal of the applicant’s com-
                                                                         Appeal:                        plaint.
 ---pagebreak--- C 227/24               EN                      Official Journal of the European Communities                                   11.8.2001
Pleas in law                   — The Board of Appeal ignored              becoming established on 1 April 1985. The applicant conse-
                                   the fact that the conflicting          quently pleads infringement of Article 11(2) of Annex VIII to
                                   mark consisted not of the term         the Staff Regulations and breach of the general provisions for
                                   ‘miss fifties’ but of a word and       the implementation of Article 11(2) of Annex VIII to the Staff
                                   pictorial mark, containing a           Regulations.
                                   great variety of word and pic-
                                   torial components.
                               — There was no conceptual con-
                                   nection between ‘Fifties’ and
                                   ‘miss fifties’.
                                                                          Action brought on 14 May 2001 by Sacilor Lormines S.A.
                                                                            against the Commission of the European Communities
                                                                                (Case T-107/01)
                                                                                (2001/C 227/47)
Action brought on 11 May 2001 by Noé Youssouroum
          against the Council of the European Union                                          (Language of the case: French)
                                                                          An action against the Commission of the European Communi-
                         (Case T-106/01)
                                                                          ties was brought before the Court of First Instance of the
                                                                          European Communities on 14 May 2001 by Sacilor Lormines
                         (2001/C 227/46)                                  S.A., a mining company established at Puteaux (France),
                                                                          represented by Geneviève Marty, avocat.
                                                                          The applicant claims that the Court should:
                    (Language of the case: French)
                                                                          —     annul the implicit decision of 21 April 2001 by which
                                                                                the Commission refused to uphold the complaint lodged
An action against the Council of the European Union was
                                                                                by the mining company Sacilor Lormines S.A. and
brought before the Court of First Instance of the European
                                                                                registered on 21 February 2001 under No SG 01 A/2321;
Communities on 11 May 2001 by Noé Youssouroum, residing
in Brussels, represented by Jean-Noël Louis and Véronique                 —     in the alternative, annul the decision of 30 March
Peere, avocats, with an address for service in Luxembourg.                      2001 by which the Commission refused to uphold
                                                                                the complaint lodged by the mining company Sacilor
The applicant claims that the Court should:                                     Lormines S.A. and registered on 21 February 2001 under
                                                                                No SG 01 A/2321;
—     annul the Council’s decision of 8 June 2000 fixing the              —     order the Commission to pay the costs.
      calculation of the number of years of pensionable service
      with which he is to be credited pursuant to Article 11(2)
      of Annex VIII to the Staff Regulations following the                Pleas in law and principal arguments
      transfer to the Community pension scheme of the
      pension rights acquired by the applicant prior to his entry
      into service;                                                       By letter of 30 March 2001, the Commission refused to
                                                                          uphold the applicant’s complaint requesting the opening of a
—     order the defendant to pay the costs.                               procedure under Article 88 of the ECSC Treaty against the
                                                                          French Government. In support of its action for a declaration
                                                                          of failure to act and for annulment, the applicant pleads
                                                                          infringement by the Commission of Article 88 of the ECSC
Pleas in law and main arguments                                           Treaty. According to the applicant, the French Government
                                                                          has infringed Articles 4(c) and 86 of the ECSC Treaty by
                                                                          imposing special charges on the applicant. This constitutes, it
The applicant disputes the salary taken into consideration by             claims, an unlawful act against which the Commission should
the Council when calculating the number of years of pension-              have taken action in accordance with Article 88 of the ECSC
able service to be credited to him following the transfer of the          Treaty. In addition, the applicant pleads, in the context of its
pension rights acquired by him prior to his entry into service.           action for annulment, breach of the essential procedural
According to the applicant, the Council should have taken                 requirements of the decision of 30 March 2001 and violation
into consideration the salary received by him upon his entry              of the principle of sound administration.
into service on 1 November 1983, initially as a member of the
auxiliary staff and subsequently as a member of the temporary
staff, and not the salary corresponding to his grade upon


title: Case C-187/00: Reference for a preliminary ruling from the Arbeitsgericht Hamburg by order of that court of 3 May 2000 in the case of Dr Helga Kutz-Bauer v Freie und Hansestadt Hamburg

text:
22.7.2000              EN                    Official Journal of the European Communities                                           C 211/11
     of cocoa and sugar of OCT origin was possible without              Reference for a preliminary ruling by the Cour d’Appel
     limitation on the basis of Article 6 of Annex II to the            de Paris (Ninth Chamber) by judgment of 15 May 2000 in
     OCT Decision. The Commission seeks in Regulation                   the case of Edouard Balguerie, Bernard André Mercier
     No 465/2000 to impose a limit on an EC/OCT cumulation              and Patrick Thomas, and, as parties bearing civil liability,
     of origin upheld by the Council and thus seeks to avoid a          Société Balguerie, Société Pillet and Orkos Diffusion
     consequence which was clearly created by the OCT                   v Administration des Douanes; intervener: Ministère
     Decision and upheld by the Council;                                                                Public
— Infringement of Article 253 EC.
                                                                                (Case C-190/00)
( 1) OJ 2000 L 56, p. 39.
(2) OJ 1991 L 263, p. 1.                                                                          (2000/C 211/18)
(3) OJ 2000 L 55, p. 67.
                                                                        Reference has been made to the Court of Justice of the
                                                                        European Communities by judgment of 15 May 2000 by the
                                                                        Cour d’Appel de Paris (Court of Appeal, Paris) (Ninth
                                                                        Chamber), which was received at the Court Registry on 23 May
                                                                        2000, for a preliminary ruling in the case of Edouard Balguerie,
Reference for a preliminary ruling from the Arbeitsge-                  Bernard André Mercier and Patrick Thomas, and, as parties
richt Hamburg by order of that court of 3 May 2000 in                   bearing civil liability, Société Balguerie, Société Pillet and Orkos
the case of Dr Helga Kutz-Bauer v Freie und Hansestadt                  Diffusion v Administration des Douanes; intervener: Ministère
                             Hamburg                                    Public, on the following question:
                          (Case C-187/00)
                                                                        Do Commission Regulation No 4142/87 of 9 December
                          (2000/C 211/17)                               1987 (1) and the conditions imposed for its application in
                                                                        regard to imports of dates under the procedure for the
Reference has been made to the Court of Justice of the                  suspension of customs duties by reason of the end-use of
European Communities by an order of the Arbeitsgericht                  the goods preclude such goods being imported in original
(Labour Court), Hamburg, of 3 May 2000, which was received              packaging with a content of less than or equal to 11 kg?
at the Court Registry on 19 May 2000, for a preliminary ruling
in the case of Dr Helga Kutz-Bauer v Freie und Hansestadt
Hamburg on the following questions:                                     (1) Commission Regulation (EEC) No 4142/87 of 9 December 1987
                                                                            determining the conditions under which certain goods are eligible
1. Does a provision of a collective agreement for the public                on import for a favourable tariff arrangement by reason of their
     service which allows male and female employees to claim                end-use (OJ L 387 of 31.12.1987, p. 81).
     part-time working on grounds of age infringe Articles 2(1)
     and 5(1) of Council Directive 76/207/EEC on the im-
     plementation of the principle of equal treatment for men
     and women as regards access to employment, vocational
     training and promotion, and working conditions, if it
     allows part-time working on grounds of age only until the
     time when a full pension under the statutory old-age
     insurance scheme may first be claimed, and if the class of
     persons who may already draw a full pension at the age of
     60 consists almost exclusively of women, while the class           Action brought on 25 May 2000 by the Commission of
     who may draw a full pension only from the age of                     the European Communities against the Italian Republic
     65 consists almost exclusively of men?
2. Are national courts empowered, where provisions of                                             (Case C-191/00)
     collective agreements and legislative provisions are in
     breach of Directive 76/207/EEC (1) or Directive 79/7/
     EEC (2), to apply the corresponding provisions in favour of                                  (2000/C 211/19)
     the disadvantaged class, disregarding the restrictions which
     are contrary to Community law, until non-discriminatory
     rules are created by the parties to the collective agreement       An action against the Italian Republic was brought before the
     and/or the legislature?                                            Court of Justice of the European Communities on 25 May
                                                                        2000 by the Commission of the European Communities,
                                                                        represented by Karen Banks, Legal Adviser, and Laura Pignata-
(1) OJ L 39 of 14.2.1976, p. 40.                                        ro, of the Legal Service, acting as Agents, with an address for
(2) OJ L 6 of 10.1.1979, p. 24.
                                                                        service in Luxembourg at the office of Carlos Gómez de la
                                                                        Cruz, of the Commission’s Legal Service, Wagner Centre,
                                                                        Kirchberg.


title: Case F-49/15: Judgment of the Civil Service Tribunal (Second Chamber) of 11 April 2016 — FU v Commission (Civil Service — Disciplinary procedure — Disciplinary Board — Member of the temporary staff of the Court of Auditors appointed as a probationary official of the Commission — Change in place of employment — Simultaneous applications for allowance for resettlement in the home country and installation allowance in Brussels — Application for reimbursement of the removal expenses from Luxembourg to the home country — OLAF enquiry — Disciplinary penalty — Classification in a lower function group without downgrading — Article 25 of Annex IX to the Staff Regulations — Manifest error of assessment — Failure to comply with the adversarial principle — New fact — Obligation to reopen the disciplinary procedure — Proportionality of the penalty — Procedural time limit)

text:
               30.5.2016

               EN

               Official Journal of the European Union

               C 191/48

         Judgment of the Civil Service Tribunal (Second Chamber) of 11 April 2016 — FU v Commission
   (Case F-49/15) (1)

   ((Civil Service - Disciplinary procedure - Disciplinary Board - Member of the temporary staff of the Court of Auditors appointed as a probationary official of the Commission - Change in place of employment - Simultaneous applications for allowance for resettlement in the home country and installation allowance in Brussels - Application for reimbursement of the removal expenses from Luxembourg to the home country - OLAF enquiry - Disciplinary penalty - Classification in a lower function group without downgrading - Article 25 of Annex IX to the Staff Regulations - Manifest error of assessment - Failure to comply with the adversarial principle - New fact - Obligation to reopen the disciplinary procedure - Proportionality of the penalty - Procedural time limit))
   (2016/C 191/69)
   Language of the case: French

      Parties

      Applicant: FU (represented by: S. Pappas, lawyer)

      Defendant: European Commission (represented initially by: J. Currall and C. Ehrbar, and subsequently by: C. Ehrbar and F. Simonetti, acting as Agents)

      Re:

   Annulment of the decision imposing a disciplinary sanction on the applicant in the form of reclassification in grade AST 5, whereas the applicant had been appointed to grade AD 5, for making statements, deemed to be false, in order to receive the resettlement allowance and removal expenses.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action;

               2.

               Orders FU to bear his own costs and to pay the costs incurred by the European Commission.

      (1)  OJ C 190, 8.6.2015, p. 36.