title: Case C-507/04: Judgment of the Court (Fourth Chamber) of 12 July 2007 — Commission of the European Communities v Republic of Austria (Failure of a Member State to fulfil obligations — Conservation of wild birds — Directive 79/409/EEC — Measures transposing the directive)

text:
               8.9.2007

               EN

               Official Journal of the European Union

               C 211/2

         Judgment of the Court (Fourth Chamber) of 12 July 2007 — Commission of the European Communities v Republic of Austria
   (Case C-507/04) (1)

   (Failure of a Member State to fulfil obligations - Conservation of wild birds - Directive 79/409/EEC - Measures transposing the directive)
   (2007/C 211/03)
   Language of the case: German
   Parties

      Applicant: Commission of the European Communities (represented by: M. van Beek, B. Schima and M. Lang, acting as Agents)

      Defendant: Republic of Austria (represented by: H. Dossi, acting as Agent)
   Re:
   Failure of a Member State to fulfil obligations — Incomplete and incorrect transposition of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1)
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to transpose correctly

                           —

                           Article 1(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, in Burgenland, Carinthia, Lower Austria, Upper Austria and Styria;

                           —

                           Article 5 of Directive 79/409 in Burgenland, Carinthia, Lower Austria, Upper Austria and Styria;

                           —

                           Article 6(1) of Directive 79/409 in Upper Austria;

                           —

                           Article 7(1) of Directive 79/409 in Carinthia, Lower Austria and Upper Austria;

                           —

                           Article 7(4) of Directive 79/409 in the following provinces and regarding the following species:

                                       —

                                       in Carinthia as regards the capercaillie, black grouse, common coot, woodcock, wood pigeon and collared dove,

                                       —

                                       in Lower Austria as regards the wood pigeon, capercaillie, black grouse and woodcock,

                                       —

                                       in Upper Austria as regards the capercaillie, black grouse and woodcock,

                                       —

                                       in the Province of Salzburg as regards the capercaillie, black grouse and woodcock,

                                       —

                                       in Styria as regards the capercaillie, black grouse and woodcock,

                                       —

                                       in Tyrol as regards the capercaillie and black grouse,

                                       —

                                       in Vorarlberg as regards the black grouse, and

                                       —

                                       in the Province of Vienna as regards the woodcock;

                           —

                           Article 8 of Directive 79/409 in Lower Austria;

                           —

                           Article 9(1) and (2) of Directive 79/409 in Burgenland, Lower Austria as regards Paragraph 20(4) of the Law of Lower Austria on Nature Protection (Niederösterreichisches Naturschutzgesetz), Upper Austria, the Province of Salzburg, Tyrol and Styria;

                           —

                           Article 11 of Directive 79/409 in Lower Austria,

                     the Republic of Austria has failed to fulfil its obligations under Article 10 EC, Article 249 EC and Article 18 of Directive 79/409;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the Republic of Austria to pay the costs.

      (1)  OJ C 45, 19.2.2005.


title: Judgment of the Court of First Instance of 11 March 1999 in Case T-134/94: NMH Stahlwerke GmbH v. Commission of the European Communities (ECSC Treaty - Competition - Agreements between undertakings - System for the exchange of information - Fine - Responsibility for the infringement)

text:
C 160/12                 EN                    Official Journal of the European Communities                                             5.6.1999
                                                         COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                               3. orders the applicant to bear its own costs and to pay half of the
                                                                               defendant’s costs. The defendant shall bear half of its own costs.
                          of 11 March 1999                                (1) OJ C 161, 11.6.1994.
in Case T-134/94: NMH Stahlwerke GmbH v. Commission
                of the European Communities (1)
(ECSC Treaty — Competition — Agreements between                               JUDGMENT OF THE COURT OF FIRST INSTANCE
undertakings — System for the exchange of information —
          Fine — Responsibility for the infringement)                                              of 11 March 1999
                                                                          in Case T-136/94: Eurofer ASBL v. Commission of the
                           (1999/C 160/23)                                                    European Communities (1)
                                                                          (ECSC Treaty — Competition — Decisions by associations
                                                                          of undertakings — System for the exchange of information)
                   (Language of the case: German)                                                   (1999/C 160/24)
                                                                                (Language of the case: German)
In case T-134/94: NMH Stahlwerke GmbH, having its regis-
tered office in Sulzbach-Rosenberg (Germany), represented by
Paul B. Schäuble, Rechtsanwalt, Munich, with an address for               In case T-136/94: Eurofer ASBL, established in Luxembourg,
service in Luxembourg at the Chambers of Ernest Arendt,                   17-25, avenue de la Liberté, represented by Norbert Koch, of
8-10, rue Mathias Hardt, v. Commission of the European                    the Brussels Bar, v. Commission of the European Communities
Communities (Agents: initially Julian Currall, Norbert Lorenz             (Agents: initially Julian Currall, Norbert Lorenz and Géraud
and Géraud Sajust de Bergues, and subsequently Jean-Louis                 Sajust de Bergues, and subsequently Jean-Louis Dewost, Julian
Dewost, Julian Currall and Guy Charrier, assisted by Heinz-               Currall and Guy Charrier, assisted by Heinz-Joachim Freund)
Joachim Freund) — application, principally, for the annulment             — application, principally, for the annulment of articles 2 and
of Commission Decision 94/215/ECSC of 16 February 1994                    3 of Commission Decision 94/215/ECSC of 16 February 1994
relating to a proceeding pursuant to Article 65 of the ECSC               relating to a proceeding pursuant to article 65 of the ECSC
Treaty concerning agreements and concerted practices engaged              Treaty concerning agreements and concerted practices engaged
in by European producers of beams (OJ L 116, 6.5.1994, p. 1)              in by European producers of beams (OJ L 116, 6.5.1994, p. 1)
— the Court of First Instance (Second Chamber, Extended                   — the Court of First Instance (Second Chamber, Extended
Composition), composed of: C. W. Bellamy, acting as President,            Composition), composed of: C. W. Bellamy, acting as President,
A. Potocki and J. Pirrung, Judges; J. Palacio González, Adminis-         A. Potocki and J. Pirrung, Judges; J. Palacio González, Adminis-
trator, for the Registrar, has given a judgment on 11 March               trator, for the Registrar, has given a judgment on 11 March
1999, in which it:                                                        1999, in which it:
                                                                          1. dismisses the action,
1. fixes at EUR 110 000 the amount of the fine imposed on the
     applicant by Article 4 of Commission Decision 94/215/ECSC            2. orders the applicant to pay the costs.
     of 16 February 1994 relating to a proceeding pursuant to
     Article 65 of the ECSC Treaty concerning agreements and
     concerted practices engaged in by European producers of beams,       (1) OJ C 174, 25.6.1994.
2. dismisses the remainder of the action,


title: Case C-235/03: Reference for a preliminary ruling by the Juzgado de 1a Instancia n° 35 (Barcelona) by order of that Court of 5 May 2003 in the case of QDQ Media S.A. against A. Omedas Lecha

text:
19.7.2003               EN                       Official Journal of the European Union                                          C 171/19
(3) How should the requirement that the use must be                      Action brought on 5 June 2003 by the Commission of
       ‘necessary’ to indicate the intended purpose of a product         the European Communities against the Kingdom of the
       be interpreted? Can the criterion of necessity be satisfied                                     Netherlands
       even though it would in itself be possible to state the
       intended purpose without an express reference to the
                                                                                (Case C-241/03)
       third party’s trade mark, by merely mentioning only for
       instance the technical principle of functioning of the
       product? What significance does it have in that case that                                     (2003/C 171/28)
       the statement may be more difficult for consumers to
       understand if there is no express reference to the third
       party’s trade mark?
                                                                         An action against the Kingdom of the Netherlands was brought
(4) What factors should be taken into account when assessing             before the Court of Justice of the European Communities on
       accordance with honest commercial practice? Does the              5 June 2003 by the Commission of the European Communi-
       mentioning of a third party’s trade mark in connection            ties, represented by G. Zavvos and W. Wils, as Agents.
       with the marketing of one’s own product constitute a
       reference to the fact that the marketer’s own product
       corresponds, in quality and technically or as regards its         The applicant claims that the Court should:
       other properties, to the product designated by the third
       party’s trade mark?                                               —      declare that, by failing to adopt the laws, regulations
                                                                                and administrative provisions necessary to comply with
(5) Does it affect the permissibility of the use of a third                     Directive 2000/26/EC of the European Parliament and of
       party’s trade mark that the economic operator who refers                 the Council of 16 May 2000 on the approximation of the
       to the third party’s trade mark also markets, in addition                laws of the Members States relating to insurance against
       to a spare part or accessory, a product of his own which                 civil liability in respect of the use of motor vehicles and
       that spare part or accessory is intended to be used with?                amending Council Directives 73/239/EEC and 88/357/
                                                                                EEC (Fourth motor insurance Directive) ( 1), or in any
( 1) First Council Directive 89/104/EEC of 21 December 1988 to                  event by failing to inform the Commission thereof, the
     approximate the laws of the Member States relating to trade                Kingdom of the Netherlands has failed to fulfil its
     marks (OJ L 40 of 11.2.1989, p. 1).                                        obligations under that directive;
                                                                         —      order the Kingdom of the Netherlands to pay the costs.
Reference for a preliminary ruling by the Juzgado de                     Pleas in law and main arguments
1a Instancia n o 35 (Barcelona) by order of that Court of
5 May 2003 in the case of QDQ Media S.A. against
                         A. Omedas Lecha                                 The time limit for compliance with the directive expired on
                                                                         20 July 2002.
                          (Case C-235/03)
                                                                         (1 ) OJ 2000 L 181, p. 65.
                          (2003/C 171/27)
Reference has been made to the Court of Justice of the
European Communities by order of the Juzgado de 1a Instancia
no 35 (Court of First Instance No 35) (Barcelona) of 5 May
2003, received at the Court Registry on 2 June 2003, for a
preliminary ruling in the case of QDQ Media S.A. against                 Action brought on 6 June 2003 by the Commission of the
A. Omedas Lecha on the following question:                                    European Communities against the French Republic
Within the context of the protection accorded a creditor under                                       (Case C-243/03)
Directive 2000/35/EC ( 1) of the European Parliament and of
the Council of 29 June 2000 on combating late payment in                                             (2003/C 171/29)
commercial transaction, is it possible to regard as a debt-
related recovery cost the expenses arising from the use of legal
representation and assistance in the enforcement proceedings
brought for the purpose of recovering that debt.                         An action against the French Republic was brought before the
                                                                         Court of Justice of the European Communities on 6 June 2003
( 1) OJ L 200 of 8.8.2000, p. 35.                                        by the Commission of the European Communities, represented
                                                                         by E. Traversa, acting as Agent, with an address for service in
                                                                         Luxembourg.


title: Case C-70/99: Action brought on 26 February 1999 by the Commission of the European Communities against the Portuguese Republic

text:
15.5.1999              EN                    Official Journal of the European Communities                                           C 136/9
— order the United Kingdom to pay the costs.                            Pleas in law and main arguments
Pleas in law and main arguments                                         The differences in the amounts payable by way of the passenger
                                                                        services tax and insurance tax at issue must be considered in
                                                                        the light of Community law, in particular of the provisions of
According to Article 3(1), waters affected by pollution and
                                                                        Regulation (EEC) No 2408/92 and of the principle of freedom
waters which could be affected by pollution if action pursuant
                                                                        to provide services enshrined in the Treaty and in particular in
to Article 5 of the Directive is not taken, shall be identified by
                                                                        Article 59 thereof. From the point of view of the single market,
the Member States in accordance with the criteria set out in
                                                                        that freedom under Article 59 precludes the application of any
Annexe I.
                                                                        legislation which has as its effect to make it more difficult to
                                                                        provide services between Member States than to provide
It appears that only surface waters intended for the abstraction        services exclusively within one Member State (see Case
of drinking water were identified in accordance with Article            C-288/89 Stichting Collectieve Antennevoorziening Gouda v Com-
3(1), whilst the Directive requires that surface freshwaters not        missariaat voor de Media 1991 ECR I-4007). The applicant
intended or used for the abstraction of drinking water, which           claims that it is clear, not only in terms of Regulation (EEC)
contain or could contain excessive concentrations of nitrates,          No 2408/92 but also of Article 7a of the EC Treaty and its
must be identified.                                                     express reference to Article 84, which is the legal basis for the
                                                                        Regulation, that freedom to provide air transport services
It also appears that only groundwaters’ sources were identified         within the Community is an integral part of such a single
in accordance with Article 3(1), whilst the Directive requires          market. Article 59 has primacy over the application of national
that all groundwaters which contain more than 50 mg/l                   legislation, unless the latter is justified on grounds of overriding
nitrates or could contain more than 50 mg/l nitrates if action          reasons relating to the public interest and does not go beyond
pursuant to Article 5 is not taken, must be identified.                 that which is necessary in order to achieve the objective
                                                                        pursued. In the Commission’s view, the justifications claimed
                                                                        by the Portuguese authorities for the measures under consider-
(1) OJ L 375, 31.12.1991, p. 1.                                         ation do not fulfil any of the above conditions.
                                                                        (1) OJ L 240, 24.8.1992, p. 1.
Action brought on 26 February 1999 by the Commission
of the European Communities against the Portuguese
                             Republic
                                                                        Reference for a preliminary ruling from the Landesverga-
                          (Case C-70/99)                                beamt Tirol by order of that tribunal of 17 February 1999
                                                                        in the case of Ortner GmbH v Innsbrucker Kommunal-
                         (1999/C 136/14)                                                            betriebe AG
An action against the Portuguese Republic was brought                                             (Case C-72/99)
before the Court of Justice of the European Communities on
26 February 1999 by the Commission of the European
Communities, represented by Frank Benyon, Legal Adviser,                                         (1999/C 136/15)
and Francisco de Sousa Fialho, of its Legal Service, acting as
Agents, with an address for service in Luxembourg at the office         Reference has been made to the Court of Justice of the
of Carlos Gómez de la Cruz, of its Legal Service, Wagner               European Communities by an order of the Landesvergabeamt
Centre, Kirchberg.                                                      Tirol (Procurement Office of the Land of Tyrol), Austria, of
                                                                        17 February 1999, which was received at the Court Registry
The applicant claims that the Court should:                             on 2 March 1999, for a preliminary ruling in the case of
                                                                        Ortner GmbH v Innsbrucker Kommunalbetriebe AG on the
— Declare that, by maintaining in force under Article 10 of             following questions:
     Implementing Decree No 38/91 of 29 July 1991 a system
     whereby flights from Portugal to other Member States are           A. Are the Member States, in transposing Directive
     liable to taxes in excess of those applicable to domestic              89/665/EEC (1), obliged by Article 2(6) thereof to ensure
     flights and by maintaining in force a provision by way of              that the contracting authority’s decision prior to con-
     Decree-Law No 102/91 of 8 March 1991, as implemented                   clusion of the contract as to which tenderer in an award
     by subsequent relevant Implementing Orders, that flights               procedure it will, on the basis of the results of that
     from Portugal to other Member States are liable to payment             procedure, conclude the contract with (in other words, the
     of taxes in excess of those payable in respect of certain              award decision) is, despite the possibility of restricting
     domestic flights, the Portuguese Republic has failed to fulfil         the legal effect of the review procedure following the
     its obligations under Article 3(1) of Council Regulation               conclusion of the contract to the award of damages, in all
     (EEC) No 2408/92 (1);                                                  cases amenable to proceedings whereby an applicant may
                                                                            have that decision annulled if the relevant conditions are
— Order the Portuguese Republic to pay the costs.                           met?


title: Case C-124/09: Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 3 April 2009 — Smit Reizen BV v Minister van Verkeer en Waterstaat

text:
               6.6.2009

               EN

               Official Journal of the European Union

               C 129/11

         Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 3 April 2009 — Smit Reizen BV v Minister van Verkeer en Waterstaat
   (Case C-124/09)
   2009/C 129/18
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

      Appellant: Smit Reizen BV

      Respondent: Minister van Verkeer en Waterstaat

      Questions referred

               1.

               Against the background of Article 1(5) of Council Regulation (EEC) No 3820/85 (1) of 20 December 1985 on the harmonisation of certain social legislation relating to road transport and of Article 15 of Council Regulation (EEC) No 3821/85 (2) of 20 December 1985 on recording equipment in road transport, how must the term ‘operating centre,’ as referred to in paragraph 21, and elsewhere, of the judgment of the Court of Justice in Case C-297/99 Skills Motor Coaches Ltd [2001] ECR I-573, be interpreted?

               2.

               For the assessment as to what constitutes rest for the purposes of Article 1(5) of Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport, does it make any difference whether the driver concerned drives himself to a place where he is to take over a vehicle in which a tachograph must be installed or is driven there by someone else?

      (1)  Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport (OJ 1985 L 370, p. 1).

      (2)  Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport (OJ 1985 L 370, p. 8).


title: Case T-11/01: Action brought on 22 January 2001 by Catherine Mascetti against Commission of the European Communities

text:
C 95/18                EN                      Official Journal of the European Communities                                      24.3.2001
Pleas in law and main arguments                                           Pleas in law and main arguments
The applicant was injured in two serious road-traffic accidents.
Following his initial treatment, the applicant applied for unpaid         The present action is directed against the decision of 28 Sep-
leave; that application was granted pursuant to Article 40 of             tember 2000, by which the authority competent to conclude
the Staff Regulations, initially for a period of one year.                staff contracts rejected the applicant’s complaint lodged under
                                                                          No 166/2000, seeking confirmation that her employment
                                                                          relationship with the Commission was for an indefinite period
Whilst on leave, the applicant applied to be retired on health            under a temporary staff contract pursuant to Article 2(d) of
grounds. The defendant refused that application, since the                the Conditions of Employment of other Servants (CES).
applicant had at his own request been granted leave on
personal grounds, and could not therefore show that he was
performing the duties corresponding to a post.
                                                                          The applicant points out in this respect that she was engaged
                                                                          by the defendant on 16 October 1996 as a member of the
The applicant asserts that the question as to whether or not              auxiliary staff. Subsequently, the applicant and the Commission
the criteria laid down by Article 78 of the Staff Regulations are         agreed to add a clause providing for the extension of the
fulfilled is to be determined on the basis of expert medical              contract until 15 October 2000, giving a total duration of
reports, and that the determination of that question cannot               3 years. The contract was not subsequently renewed.
depend on whether the applicant was, at the relevant time, on
leave on personal grounds. Consequently, the defendant is
wrong to believe that it has any margin of discretion as regards
the carrying- out an administrative/technical assessment of the           According to the applicant, the Commission’s intention of not
circumstances.                                                            offering employment relationships to temporary agents in
                                                                          excess of 3 years is evident from the fact that the Commission
                                                                          chose to abolish posts in respect of which it had published
                                                                          vacancy notices and for which the applicant herself had
                                                                          applied.
                                                                          In support of her arguments, the applicant alleges:
Action brought on 22 January 2001 by Catherine Mascetti                   —     Breach of the principle of good administration and
    against Commission of the European Communities                              infringement of Articles 3 and 5 of the CES for having
                                                                                unlawfully classified the applicant as an auxiliary agent.
                          (Case T-11/01)
                                                                          —     Infringement of Articles 8 et seq. and 47 of the CES.
                         (2001/C 95/35)
                                                                          —     Infringement of the decision of the Commission of
                                                                                19 January 1996 on a New Policy for Research Staff
                   (Language of the case: Italian)                              (NPRS).
An action against the Commission of the European Communi-                 —     Breach of the principles of legality and of legitimate
ties was brought before the Court of First Instance of the                      expectations.
European Communities on 22 January 2001 by Catherine
Mascetti, represented by Bruno Nascimbene and Massimo
Condinanzi, Avvocati, with an address for service in Luxem-               —     Unlawfulness of the NPRS as contrary to the CES and to
bourg.                                                                          the principle of non-discrimination.
The applicant claims that the Court should:                               —     Unlawfulness of the NPRS for failure to consult the Staff
                                                                                Regulations Committee.
—      Annul the decision of the Commission of 28 September
       2000 rejecting the complaint lodged by the applicant on
       28 March 2000 under No 166/2000;
—      Order the Commission to pay the costs.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 25 June 1998 in Case C-192/96 (reference for a preliminary ruling from the Netherlands Raad van State): Beside BV and I. M. Besselsen v. Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer (Management, transport and storage of municipal/household waste - Illegal traffic)

text:
C 278/4               EN                  Official Journal of the European Communities                                      5.9.98
               JUDGMENT OF THE COURT                                                  JUDGMENT OF THE COURT
                       (Sixth Chamber)                                                       (Sixth Chamber)
                        of 18 June 1998                                                      of 25 June 1998
in   Case    C-208/97: Commission of the European                    in Case C-192/96 (reference for a preliminary ruling from
           Communities v. Portuguese Republic (1)                    the Netherlands Raad van State): Beside BV and I. M.
(Failure to fulfil obligations Ð Directive 84/156/EEC Ð              Besselsen v. Minister van Volkshuisvesting, Ruimtelijke
      Failure to transpose within the prescribed period)                                Ordening en Milieubeheer (1)
                         (98/C 278/06)                               (Management, transport and storage of municipal/
                                                                                household waste Ð Illegal traffic)
                                                                                (98/C 278/07)
              (Language of the case: Portuguese)
                                                                                (Language of the case: Dutch)
  (Provisional translation; the definitive translation will be
          published in the European Court Reports)
In Case C-208/97: Commission of the European                          (Provisional translation; the definitive translation will be
Communities (Agent: Francisco de Sousa Fialho) v.                             published in the European Court Reports)
Portuguese Republic (Agents: Luís Fernandes and JoaÄo
Lopes Fernandes) Ð application for a declaration that, by
failing to adopt within the period prescribed the laws,
regulations and administrative provisions necessary to               In Case C-192/96: reference to the Court under Article 177
comply with Council Directive 84/156/EEC of 8 March                  of the EC Treaty from the Netherlands Raad van State
1984 om limit values and quality objectives for mercury              (Council of State), for a preliminary ruling in the
discharges by sectors other than the chlor-alkali                    proceedings pending before that court between Beside BV
electrolysis industry (OJ L 74, 17.3.1984, p. 49), and, in           and I. M. Besselsen and Minister van Volkshuisvesting,
particular, by failing to draw up the specific programmes            Ruimtelijke Ordening en Milieubeheer Ð on the
required by that Directive, and in the alternative, by               interpretation of Council Regulation (EEC) No 259/93 of
failing forthwith to inform the Commission of such                   1 February 1993 on the supervision and control of
measures, the Portuguese Republic has failed to fulfil its           shipments of waste within, into and out of the European
obligations under the third paragraph of Article 189 of the          Community (OJ L 30, 6.2.1993, p. 1) and of Council
EC Treaty and under that Directive Ð the Court (Sixth                Directive 75/442/EEC of 15 July 1975 on waste (OJ L 194,
Chamber), composed of: H. Ragnemalm, President of the                25.7.1975, p. 39), as amended by Council Directive 91/
Chamber, G. F. Mancini, J. L. Murray, G. Hirsch and                  156/EEC of 18 March 1991 amending Directive 75/442/
K. M. Ioannou (Rapporteur), Judges; P. LeÂger, Advocate-             EEC on waste (OJ L 78, 26.3.1991, p. 32) Ð the Court
General; R. Grass, Registrar, has given a judgment on                (Sixth Chamber), composed of: H. Ragnemalm
18 June 1998, in which it:                                           (Rapporteur), President of the Chamber, G. F. Mancini,
                                                                     P. J. G. Kapteyn, J. L. Murray and G. Hirsch, Judges: F. G.
                                                                     Jacobs, Advocate-General; H. A. Rühl, Principal
                                                                     Administrator, for the Registrar, has given a judgment on
1. declares that, by failing to adopt within the period              25 June 1998, in which it has ruled:
     prescribed the laws, regulations and administrative
     provisions necessary to comply with Council Directive
     84/156/EEC of 8 March 1984 on limit values and
     quality objectives for mercury discharges by sectors
                                                                     1.    The expression municipal/household waste' referred
     other than the chlor-alkali electrolysis industry and, in
                                                                           to under AD 160 in the amber list in Annex III to
     particular, by failing to draw up the specific
                                                                           Council Regulation (EEC) No 259/93 of 1 February
     programmes required by that directive, the Portuguese
                                                                           1993 on the supervision and control of shipments of
     Republic has failed to fulfil its obligations under
                                                                           waste within, into and out of the European
     Article 4(1) of the said Directive;
                                                                           Community, as amended by Commission Decision
                                                                           94/721/EC of 21 October 1994 adapting, pursuant to
                                                                           Article 42(3), Annexes II, III and IV to Council
2. orders the Portuguese Republic to pay the costs.                        Regulation (EEC) No 259/93, includes both waste
                                                                           which for the most part consists of waste mentioned
                                                                           on the green list in Annex II to the Regulation,
(1) OJ C 228, 26.7.1997.                                                   mixed with other categories of waste appearing on
                                                                           that list, and waste mentioned on the green list mixed
                                                                           with a small quantity of materials not referred to on
                                                                           that list.
 ---pagebreak--- 5.9.98                EN                  Official Journal of the European Communities                                     C 278/5
2a. The reference to the storage of materials in point R 13          (Netherlands Council of State) for a preliminary ruling in
      of Annex II B to Council Directive 75/442/EEC of               the proceedings pending before that court between Chemi-
      15 July 1975 on waste, as amended by Directive 91/             sche Afvalstoffen Dusseldorp BV and Others and Minister
      156/EEC of 18 March 1991, must be interpreted as               van Volkshuisvesting, Ruimtelijke Ordening en Milieube-
      covering not only cases in which storage takes place           heer Ð on the interpretation of Articles 34, 86, 90 and
      in the undertaking in which the other operations               130t of the EC Treaty, of Council Directive 75/442/EEC
      mentioned in that Annex must be carried out but also           of 15 July 1975 on waste (OJ L 194, 25.7.1975, p. 39), as
      cases in which storage precedes transport to such an           amended by Directive 91/156/EEC of 18 March 1991 (OJ
      undertaking, regardless of whether the latter is               L 78, 26.3.1991, p. 32), and of Council Regulation (EEC)
      established inside or outside the Community.                   No 259/93 of 1 February 1993 on the supervision and
                                                                     control of shipments of waste within, into and out of the
                                                                     European Community (OJ L 30, 6.2.1993, p. 1) Ð the
                                                                     Court (Sixth Chamber), composed of: H. Ragnemalm
2b. The information listed in Article 11(1) of Regulation            (Rapporteur), President of the Chamber, G. F. Mancini,
      (EEC) No 259/93 constitutes the minimum evidence               P. J. G. Kapteyn, J. L. Murray and G. Hirsch, Judges;
      which the competent authority may, in the absence of           F. G. Jacobs, Advocate-General; H. A. Rühl, Principal
      notification, require in order to establish that green        Administrator, for the Registrar, has given a judgment on
      waste' is intended for recovery.                               25 June 1998, in which it has ruled:
3.    Regulation (EEC) No 259/93 must be interpreted as
      meaning that the Member State of destination may
      not unilaterally return waste to the Member State of           1. Council Directive 75/442/EEC of 15 July 1975 on
      dispatch without prior notification to the latter; the             waste, as amended by Directive 91/156/EEC of
      Member State of dispatch may not oppose its return                 18 March 1991 and Council Regulation (EEC)
      where the Member State of destination produces a                   No 259/93 of 1 February 1993 on the supervision and
      duly motivated request to that effect.                             control of shipments of waste within, into and out of
                                                                         the European Community cannot be interpreted as
(1) OJ C 233, 10.8.1996.                                                 meaning that the principles of self-sufficiency and
                                                                         proximity are applicable to shipments of waste for
                                                                         recovery. Article 130t of the EC Treaty does not
                                                                         permit Member States to extend the application of
                                                                         those principles to such waste when it is clear that
                                                                         they create a barrier to exports which is not justified
                                                                         either by an imperative measure relating to protection
                                                                         of the environment or by one of derogations provided
                                                                         for by Article 36 of that Treaty.
               JUDGMENT OF THE COURT
                       (Sixth Chamber)
                        of 25 June 1998
in Case C-203/96 (reference for a preliminary ruling from            2. Article 90 of the EC Treaty, in conjunction with
the Nederlandse Raad van State): Chemische Afvalstoffen                  Article 86, precludes rules such as the long-term plan
Dusseldorp BV and Others v. Minister van Volkshuis-                      whereby a Member State requires undertakings to
     vesting, Ruimtelijke Ordening en Milieubeheer (1)                   deliver their waste for recovery, such as oil filters, to a
                                                                         national undertaking on which it has conferred the
(Shipments of waste for recovery Ð Principles of self-
                                                                         exclusive right to incinerate dangerous waste unless
                  sufficiency and proximity)
                                                                         the processing of their waste in another Member State
                         (98/C 278/08)                                   is of a higher quality than that performed by that
                                                                         undertaking if, without any objective justification and
                                                                         without being necessary for the performance of a task
                                                                         in the general interest, those rules have the effect of
                (Language of the case: Dutch)                            favouring the national undertaking and increasing its
                                                                         dominant position.
  (Provisional translation; the definitive translation will be       (1) OJ C 247, 24.8.1996.
          published in the European Court Reports)
In Case C-203/96: reference to the Court under Article 177
of the EC Treaty from the Nederlandse Raad van State


7.2.98                EN                  Official Journal of the European Communities                                     C 41/21
of First Instance (First Chamber), composed of A. Saggio,            2. The Commission is ordered to pay to the applicant the
President, V. Tiili and R. M. Moura Ramos, Judges; H.                    amount of the allowance provided for by Article 5(3)
Jung, Registrar, gave a judgment on 18 December 1997,                    of Annex VII to the Staff Regulations, together with
the operative part of which is as follows:                               interest at the rate of 8 % per annum as from the date
                                                                         of the application.
1. The decision of the Commission, communicated by
     note of 17 May 1995, denying payment to the                     3. The remainder of the application is dismissed.
     applicant of the installation allowance is annulled.
2. The Commission is ordered to pay to the applicant the             4. The Commission shall bear its own costs and one half
     amount of the allowance provided for in Article 5(3)                of the costs of the applicant. The applicant shall bear
     of Annex VII to the Staff Regulations, together with                one half of his own costs.
     interest at the rate of 8 % per annum as from the date
     of the application.                                             (1) OJ C 180, 22.6.1996.
3. The Commission shall bear its own expenses.
(1) OJ C 64, 2.3.1996.
                                                                     Action brought on 26 November 1997 by Alitalia against
                                                                            the Commission of the European Communities
                                                                                (Case T-296/97)
                                                                                (98/C 41/45)
  JUDGMENT OF THE COURT OF FIRST INSTANCE
                        (First Chamber)
                                                                                (Language of the case: Italian)
                     of 18 December 1997
in Case T-57/96: Livio Costantini v. Commission of the
                   European Communities (1)                          An action against the Commission of the European
                                                                     Communities was brought before the Court of First
(Officials Ð Change of place of employment Ð Return to               Instance of the European Communities on 26 November
the place of original employment Ð Installation allowance            1997 by Alitalia, represented by Antonio Tizzano and
                Ð Daily subsistence allowance)                       Gian Michele Roberti, of the Naples Bar, Mario Siragusa,
                          (98/C 41/44)                               of the Rome Bar, Giuseppe Scassellati Sforzolini, of the
                                                                     Bologna Bar, Matteo Bay, of the Milan Bar, and Matteo
                                                                     Beretta, of the Bergamo Bar, with an address for service in
                 (Language of the case: Italian)                     Luxembourg at the Chambers of Elvinger Hoss &
                                                                     Prussen, 2 Place Winston Churchill.
In Case T-57/96: Livio Costantini, an official of the
Commission of the European Communities, posted to the                The applicant claims that the Court should:
establishment at Ispra of the Joint Research Centre,
represented by Giuseppe Marchesini, Avvocato with the
right of audience before the Court of Cassation of the               Ð annul in its entirety the Commission's decision of
Italian Republic, with an address for service in                         15 July 1997 relating to Alitalia's recapitalisation, or
Luxembourg at the Chambers of Ernest Arendt, 8Ð10
Rue Mathias Hardt, against Commission of the European
Communities (Agent: Gianluigi Valsesia) Ð application
                                                                     In the alternative:
for annulment of the decisions of the Commission refusing
to pay to the applicant an installation allowance and a
daily subsistence allowance upon the latter's return to his
original place of employment after a period of                       Ð annul the conditions for granting the aid referred to in
employment outwith his institution Ð the Court of First                  Article 1(2) to (8) of the Decision,
Instance (First Chamber), composed of A. Saggio,
President, V. Tiili and R. M. Moura Ramos, Judges; A.
Mair, Administrator, for the Registrar, gave a judgment on           Ð annul also the condition requiring Alitalia to bear the
18 December 1997, the operative part of which is as                      costs of the early retirement scheme provided for by
follows:                                                                 Decree Law No 546/1996,
1. The decision of the Commission refusing the applicant             Ð order the Commission to pay the costs incurred by
     payment of the installation allowance is annulled.                  Alitalia in the course of these proceedings.
 ---pagebreak--- C 41/22               EN                  Official Journal of the European Communities                                     7.2.98
Pleas in law and main arguments adduced in support:                      proposed for Air France, not taking into account the
                                                                         importance of the objective of privatisation,
                                                                         prohibition on further State aid, prohibition of
The applicant, a limited private law company operating in                acquiring new shares in other air carriers, abolition of
the air transport industry, contests the Commission's                    all forms of preferential treatment, imposition of an
decision which considered the investment provided for in                 analytical accounting system, prohibition on price
the restructuring plan submitted to the defendant by the                 leadership, requirement to dispose of the share held in
Italian authority to be State aid within the meaning of                  MaleÂv).
Article 92 of the EC Treaty.
In support of its claims, the applicant relies on the                Finally, the applicant considers that the defendant did not
following pleas in law:                                              provide a proper statement of reasons for the contested
                                                                     decision or examined carefully and impartially all the
                                                                     factors relevant to the case. The applicant also claims that
Ð Infringement         and     erroneous     application     of      it breached the rights of the defence.
     Articles 92(1), 90(1) and 222 of the EC Treaty,
     inasmuch as the Commission considered that the
     criterion of the investor operating in a market
     economy is not fulfilled so far as concerns the
     investment made by Istituto per la Ricostruzione
     Industriale (IRI) of Lit 2 750 billion. Alitalia maintains
     in that regard that the capital injection in question did
                                                                     Action brought on 2 December 1997 by Vicente Alonso
     not preclude the right of option of third parties who
                                                                          Morales against the Commission of the European
     were thus free to subscribe to the various tranches of
                                                                                Communities
     the capital increase in proportion to their shares.
     Moreover, the Italian Government had clearly stated                                   (Case T-299/97)
     its firm determination to privatise Alitalia as soon as
     possible once authorization had been obtained for the                                   (98/C 41/46)
     capital increase. Finally, its employees agreed to
     subscribe to a capital increase reserved to them which
     would give them a 20 % share of the company's                                 (Language of the case: Spanish)
     capital. The defendant ignored those factors and did
     not take account of the wide margin of discretion of
     IRI as an investor, but rather substituted its own              An action against the Commission of the European
     assessment for that of IRI and found unsatisfactory the         Communities was brought before the Court of First
     profit rate which the Commission itself had set at a            Instance of the European Communities on 2 December
     level (20 %) five points higher than that considered            1997 by Vicente Alonso Morales, residing in Madrid,
     normal in the air transport industry (15 %).                    represented by Ramón MareÂs Salvador, of the Madrid Bar,
     Furthermore, the Commission did not restrict itself to          with an address for service in Luxembourg at the
     requiring a normal' profitability of 20 %, but instead         Chambers of Carlos Amo QuinÄones, 2 Rue Gabriel
     set an annual rate of return (hurdle rate) which, in its        Lippman.
     opinion, an investor would require in view of the
     continuing large risks of the operation. In this regard,
     the applicant adds that the calculation of profitability        The applicant claims that the Court should:
     is erroneous and the statement of grounds is defective
     inasmuch as insolvency costs are not included.
     Moreover, to require Alitalia to bear all the costs of          Ð annul the decision of 1 October 1997 of the selection
     the early retirement programme for employees also                   board in competition COM/A/1047 to reject the
     entailed a reduction of the internal rate of return                 applicant's candidature to that competition and
     (IRR),                                                              acknowledge the applicant's right to be included in the
                                                                         list of eligible candidates for competition COM/A/
                                                                         1047,
Ð Infringement and erroneous application of the third
     paragraph of Article 92 and misuse of powers. Alitalia
     finds it inexplicable that, having decided that the
     investment was State aid', the Commission should               Ð order the Commission of the European Communities
     have failed to take into account the results which the              to pay the costs.
     plan was expected to achieve, above all with regard to
     deciding whether or not to impose conditions to
     render the plan compatible with the common market',            Pleas in law and main arguments adduced in support:
     and, secondly with regard to the gradual introduction
     of such conditions. That led to the placing on the
     applicant of conditions which are disproportionate,             The applicant, who is an ingeniero teÂcnico en industrias
     discriminatory, unlawful and unjustified (limitation on         agrícolas' (agricultural industry expert), challenges the
     capacity and growth, requirement to dispose of more             decision of the selection board for general competition
     of its non-core business, different solution to that            COM/A/1047 to reject his candidature to that


title: Case C-480/14: Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 29 October 2014  — Società Sogno di Tolosa Limited and Others v Ministero dell’Economia e delle Finanze and Agenzia delle Dogane e dei Monopoli di Stato

text:
               12.1.2015

               EN

               Official Journal of the European Union

               C 7/17

         Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 29 October 2014 — Società Sogno di Tolosa Limited and Others v Ministero dell’Economia e delle Finanze and Agenzia delle Dogane e dei Monopoli di Stato
   (Case C-480/14)
   (2015/C 007/23)
   Language of the case: Italian

      Referring court

   Consiglio di Stato

      Parties to the main proceedings

      Applicants: Società Sogno di Tolosa Limited, Ds di Dimarco Enzo & C. Sas, Centro Servizi di Barillà Marco, Assok di Rambaldi Stefano e Casbarra Luca Snc, Dg Comunicazioni di Di Giorno Giancarlo, Tamara Maraboli, Andrea Cappiello, Depa di Delberba C. Sas, Luca Campioni, Danio Milazzo, Andrea Menna, Emilio Schiavone, Sandro Casalboni, Lorena Bertora and Andromeda di Novellis Alessandro e Stellini Roberto Snc

      Defendants: Ministero dell’Economia e delle Finanze and Agenzia delle Dogane e dei Monopoli di Stato

      Other parties to the proceedings: Carmelo Sisino and Others

      Questions referred

               1)

               Are Article 49 et seq. TFEU and Article 56 et seq. TFEU and the principles laid down by the Court of Justice of the European Union in [Joined Cases C-72/10 and C-77/10 Costa and Cifone [2012] ECR] to be interpreted as precluding a call for tenders for the award of licences with a period of validity shorter than that of licences awarded in the past, where that tendering procedure has been launched in order to remedy the consequences of the unlawful exclusion of a certain number of operators from earlier tendering procedures?

               2)

               Are Article 49 et seq. TFEU and Article 56 et seq. TFEU and the principles laid down by the Court of Justice of the European Union in Costa and Cifone to be interpreted as precluding the possibility that sufficient justification for the shorter period of validity of licences offered for tender, as compared with licences awarded in the past, can be found in the requirement for the licensing system to be reorganised through the alignment of licence expiry dates?


title: Case C-335/16: Judgment of the Court (Sixth Chamber) of 30 March 2017 (request for a preliminary ruling from the Općinski sud u Velikoj Gorici — Croatia) — VG Čistoća d.o.o. v Đuro Vladika, Ljubica Vladika (Reference for a preliminary ruling — Environment — Waste — Directive 2008/98/EC — Recovery of waste management costs — Polluter-pays principle — Concept of ‘waste holders’ — Price charged for waste management — Special levy intended to finance capital investments)

text:
               22.5.2017

               EN

               Official Journal of the European Union

               C 161/5

         Judgment of the Court (Sixth Chamber) of 30 March 2017 (request for a preliminary ruling from the Općinski sud u Velikoj Gorici — Croatia) — VG Čistoća d.o.o. v Đuro Vladika, Ljubica Vladika
   (Case C-335/16) (1)

   ((Reference for a preliminary ruling - Environment - Waste - Directive 2008/98/EC - Recovery of waste management costs - Polluter-pays principle - Concept of ‘waste holders’ - Price charged for waste management - Special levy intended to finance capital investments))
   (2017/C 161/06)
   Language of the case: Croatian

      Referring court

   Općinski sud u Velikoj Gorici

      Parties to the main proceedings

      Applicant: VG Čistoća d.o.o.

      Defendants: Đuro Vladika, Ljubica Vladika

      Operative part of the judgment

   Article 14 and Article 15(1) of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives must, as EU law currently stands, be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which, for the purposes of financing an urban waste management and disposal service, provides for a price calculated on the basis of an estimate of the volume of waste generated by users of that service, and not on the basis of the quantity of waste which they have actually produced and presented for collection, as well as for the payment by users, in their capacity as waste holders, of an additional levy intended to finance capital investments necessary for the processing of waste, including the recycling thereof. It is, however, incumbent on the referring court to verify, on the basis of the matters of fact and law placed before it, whether this results in the imposition on certain ‘holders’ of costs which are manifestly disproportionate to the volumes or nature of the waste that they are liable to produce. Accordingly, the national court may take into account, inter alia, criteria relating to the type of property that the users occupy, its surface area and use, the productive capacity of the ‘holders’, the volume of the containers provided to the users, and the frequency of collection, in so far as those parameters are liable to have a direct impact on the amount of the costs of waste management.

      (1)  OJ C 296, 16.8.2016.


title: Appeal brought on 29 July 1998 by Metsä-Serla Sales OY (formerly Finnish Board Mills Association - Finnboard) against the judgment delivered on 14 May 1998 by the Third Chamber (extended composition) of the Court of First Instance of the European Communities in Case T-338/94 Finnish Board Mills Association - Finnboard and the Commission of the European Communities (Case C-298/98 P)

text:
26.9.98               EN                Official Journal of the European Communities                                         C 299/23
(c)  whether the Court of First Instance was right to              (c)  even if the Court of First Instance was right to hold
     conclude that, in exercise of that choice, the                     that the Commission had a choice as to whether to
     Commission was entitled to address the Cartonboard                 address the Cartonboard Decision to SCA Holding
     Decision to SCA Holding Ltd.                                       Ltd (or to another legal entity), it was wrong not to
                                                                        take the existence of this choice into account in
                                                                        reviewing the level of fines imposed on SCA Holding
In summary, SCA Holding Ltd's position on these issues is               Ltd. To make SCA Holding Ltd exclusively
as follows:                                                             responsible for the infringement when the
                                                                        Cartonboard Decision could also have been addressed
                                                                        to, and fines imposed (in whole or in part) on, legal
(a) an issue of succession arises in circumstances where                entities belonging to other corporate groups was
     an infringement is committed by an undertaking                     unfair, disproportionate and did not serve to achieve
     which, notwithstanding one or more changes of                      any deterrent effect.
     ownership during or after the period of infringement,
     maintains functional and economic continuity
     throughout the period of infringement and up until            (1) OJ C 386, 31.12.1994, p. 15.
     the date of the Decision, continues to exist in its           (2) OJ L 243, 19.9.1994, p. 1.
     essential form at the date of the Decision and has            (3) Official Journal, English Special Edition, 1962, p. 87.
     legal personality at the date of the Decision. The
     Court of First Instance's finding that there was no
     issue of succession in this case is based on deficient
     reasoning and is contrary to legal principle and the
     jurisprudence of the European Courts;
(b) The Court of First Instance erred in law in                    Appeal brought on 29 July 1998 by Metsä-Serla Sales OY
     concluding that the Commission was entitled to                (formerly Finnish Board Mills Association Ð Finnboard)
     choose, as between entities belonging to different            against the judgment delivered on 14 May 1998 by the
     corporate groups, which entity should be the                  Third Chamber (extended composition) of the Court of
     addressee of the Cartonboard Decision;                        First Instance of the European Communities in Case
                                                                   T-338/94 Finnish Board Mills Association Ð Finnboard
                                                                       and the Commission of the European Communities
(c)  the Court of First Instance's consideration of the
                                                                                (Case C-298/98 P)
     question whether the Commission exercised that
     choice correctly was inadequate. Even if (which is                                       (98/C 299/36)
     denied) the Commission was entitled to choose which
     entity from different corporate groups to make the
     addressee of the Cartonboard Decision, the Court of
     First Instance erred in law in finding that the               An appeal against the judgment delivered on 14 May
     Commission's choice could not validly be called into          1998 by the Third Chamber (extended composition) of the
     question.                                                     Court of First Instance of the European Communities in
                                                                   Case T-338/94 between Finnish Board Mills Association
                                                                   Ð Finnboard and the Commission of the European
Fines:                                                             Communities was brought before the Court of Justice of
                                                                   the European Communities on 29 July 1998 by Metsä-
                                                                   Serla Sales OY (formerly Finnish Board Mills Association
If the Court considers that the Court of First Instance did
                                                                   Ð Finnboard), represented by Hans Hellmann, Am
not err in holding that SCA Holding Ltd was the correct
                                                                   Morsdorfer Hof 16, D-50933 Cologne, and Hans-Joachim
(or a correct) address of the Cartonboard Decision, SCA
                                                                   Hellmann LL.M., Schilling, Zutt & Anschütz, Otto-Beck-
Holding Ltd submits that the Court of First Instance erred
                                                                   Straûe 42, D-68165 Mannheim, Rechtsanwälte, with an
in the application of its unlimited jurisdiction to review
                                                                   address for service in Luxembourg at the Chambers of
the fine imposed on it by the Commission, contrary to
                                                                   Loesch & Wolter, 11 Rue Goethe, B.P. 1107, L-1011
Article 172 of the Treaty and Article 17 of Council
                                                                   Luxembourg.
Regulation No 17 (3). SCA Holding Ltd makes three pleas
in this part of its appeal:
                                                                   The appellant claims that the Court should:
(a) the Court of First Instance erred in law in finding
     that the position adopted by SCA Holding Ltd during
     the Commission's administrative procedure did not
     justify a reduction of the fine imposed on it;                1. Set aside the judgment of the Court of First Instance
                                                                       of 14 May 1998 in Case T-338/94 Finnboard v.
                                                                       Commission, save and except paragraph 1 of the
(b) the Court of First Instance erred in law in finding                operative part thereof allowing the application in
     that the defective reasoning of the Decision in                   regard to the declaration of nullity of Article 2(1) to
     relation to the fines imposed did not justify the                 (4) of the Decision, and give final judgment in the case
     annulment or reduction of SCA Holding Ltd's fine;                 as follows.
 ---pagebreak--- C 299/24              EN                Official Journal of the European Communities                                  26.9.98
    1. The Commission Decision of 13 July 1994 relating            Appeal brought on 31 July 1998 by CPL Imperial 2 SpA
        to a proceeding under Article 85 of the Treaty             and Unifrigo Gadus Srl against the judgment delivered on
        (IV/C 33.833 Ð Cartonboard) notified to the                9 June 1998 by the Third Chamber of the Court of First
        appellant on 5 August 1994 and published in the            Instance of the European Communities in Joined Cases
        Official Journal of the European Communities on            T-10/97 and T-11/97 between Unifrigo Gadus Srl and
        19 September 1998 is void in so far as it concerns         CPL Imperial 2 SpA and the Commission of the European
        the appellant,                                                                      Communities
                                                                                (Case C-299/98 P)
        or, in the alternative,
                                                                                (98/C 299/37)
        the fine is reduced.
                                                                   An appeal against the judgment delivered on 9 June 1998
    2. Order the Commission to pay the costs of the                by the Third Chamber of the Court of First Instance of the
        proceedings.                                               European Communities in Joined Cases T-10/97 and T-11/
                                                                   97 Unifrigo Gadus Srl and CPL Imperial 2 SpA v. the
2. In the further alternative:                                     Commission of the European Communities was brought
                                                                   before the Court of Justice of the European Communities
                                                                   on 31 July 1998 by CPL Imperial 2 SpA, established in
    set aside the contested judgment and refer the case            Pescara (Italy), and Unifrigo Gadus Srl, established in
    back to the Court of First Instance for judgment.              Naples (Italy), represented by Giuseppe Celona, of the
                                                                   Milan Bar, with an address for service in Luxembourg at
Pleas in law and main arguments adduced in support:                the Chambers of Georges Margue, 20 Rue Philippe II.
Ð Infringement of the obligation to give reasons for               The appellant claims that the Court should:
    decisions in individual cases under Article 190 of the
    EC Treaty: the Court of First Instance found an                Ð allow the appeal,
    infringement of the obligation to state reasons in
    regard to the criteria for determining and calculating
                                                                   Ð set aside the judgment delivered on 9 June 1998 by the
    the amount of the fine, but did not reach the
                                                                       Third Chamber of the Court of First Instance in
    mandatory legal conclusion that the decision was void.
                                                                       Joined Cases T-10/97 and T-11/97, and consequently
    The Court thereby wrongly laid down legal rules for
                                                                       annul the Commission's decision of 8 October 1996,
    the future without applying them in the case before it.
    As it is a matter of the objective application of the
    law, no significance can be attributed to the                      in the alternative:
    Commission's subjective knowledge at the time when
    it adopted its decision,                                       Ð declare that that decision does not have the effect of
                                                                       establishing whether or not the conditions for waiver
Ð error in exercising discretion when interpreting and                 of the right to recover post-clearance duties in
    applying Article 15(2) of Council Regulation No 17:                question were fulfilled, which it is for the national
    the grant of two-thirds reductions in the fine for an              court to decide,
    admission' or one third for a failure to contest' the
    essential allegations is devoid of any legal basis and             in any event
    infringes fundamental rights of defence of the parties
    concerned,
                                                                   Ð order the Commission to pay the costs of the appeal.
in the alternative:
                                                                   Pleas in law and main arguments adduced in support:
Ð when interpreting and applying Article 15(2) of                  The judgment of the Court of First Instance is challenged
    Regulation No 17 in regard to the turnover relevant            by CPL Imperial 2 SpA and Unifrigo Gadus Srl on the
    for calculating the fines the Court included the               following grounds:
    turnover of third party undertakings and thereby erred
    in law,
                                                                   Ð breach of the rights of the defence, since the Court of
                                                                       First Instance found that it was not necessary for the
Ð error of law in applying Article 15(2) of Regulation                 Commission to ascertain whether the case submitted
    No 17, having regard to the absence of effects of price            to it contained all the information necessary for
    collusion on the market,                                           consideration of the case, especially since the parties
                                                                       concerned played absolutely no part in the
Ð error of appraisal and discrimination in arbitrarily                 proceedings,
    rounding up the fine after applying the calculation
    method under Article 15(2) of Regulation No 17.                Ð breach of Article 5(2) of Council Regulation (EEC)
                                                                       No 1697/79 (1) and Article 220(2)(b) of Council
                                                                       Regulation (EEC) No 2913/92 (2), by introducing a


title: Judgment of the Court of 21 October 2003 in Joined Cases C-317/01 and C-369/01 (Reference for a preliminary ruling from the Bundessozialgericht): Eran Abatay and Others (C-317/01) Nadi Sahin (C-369/01) v Bundesanstalt für Arbeit (EEC-Turkey Association — Interpretation of Article 41(1) of the Additional Protocol and Article 13 of Decision No 1/80 — Abolition of restrictions on the freedom of movement for workers, on the freedom of establishment and on the freedom to provide services — "Standstill" clauses — Direct effect — Scope — Legislation of a Member State requiring a work permit in the international road haulage sector)

text:
C 304/4                  EN                          Official Journal of the European Union                                            13.12.2003
1.    Article 93(3) of the EC Treaty (now Article 88(3) EC) must be          of 19 September 1980 on the development of the Association,
      interpreted as precluding, in circumstances such as those in           adopted by the Association Council set up by the Association
      the main proceedings, the levying of charges which finance             Agreement between the European Economic Community and
      specifically an aid scheme that has been declared compatible           Turkey, the Court, composed of: V. Skouris, President, P. Jann,
      with the common market by a Commission decision, in so far             C.W.A. Timmermans, C. Gulmann, J.N. Cunha Rodrigues and
      as those charges are imposed retroactively in respect of a period      A. Rosas (Presidents of Chambers), D.A.O. Edward, A. La
      prior to the date of that decision.                                    Pergola, J.-P. Puissochet, R. Schintgen (Rapporteur), F. Macken,
                                                                             N. Colneric and S. von Bahr, Judges; J. Mischo, Advocate
2.    The Commission Decision of 9 August 1996 relating to aid               General; H.A. Rühl, Principal Administrator, for the Registrar,
      measure No N 366/96 does not approve the retroactive effect            has given a judgment on 21 October 2003, in which it has
      of the Law of 23 March 1998 on the establishment of a                  ruled:
      budgetary fund for the health and quality of animals and
      animal products.
(1) OJ C 303 of 27.10.2001.
                                                                             —    Article 41(1) of the Additional Protocol, signed at Brussels on
                                                                                23 November 1970 and concluded, approved and confirmed
                                                                                on behalf of the Community by Council Regulation (EEC)
                                                                                No 2760/72 of 19 December 1972, and of Article 13 of
                                                                                Decision No 1/80 of 19 September 1980 on the development
                                                                                of the Association, adopted by the Association Council set up
                                                                                by the Association Agreement between the European Economic
                                                                                Community and Turkey, must be interpreted as meaning that:
                  JUDGMENT OF THE COURT                                           those two provisions have direct effect in the Member States so
                                                                                that Turkish nationals to whom they apply are entitled to rely
                                                                                on them before the national courts to prevent the application of
                        of 21 October 2003                                        inconsistent rules of national law;
in Joined Cases C-317/01 and C-369/01 (Reference for a
preliminary ruling from the Bundessozialgericht): Eran
Abatay and Others (C-317/01) Nadi Sahin (C-369/01) v
                    Bundesanstalt für Arbeit (1)                             —    Article 41(1) and Article 13 prohibit generally the introduction
                                                                                of new national restrictions on the right of establishment and
                                                                                the freedom to provide services and freedom of movement for
(EEC-Turkey Association — Interpretation of Article 41(1)                         workers from the date of the entry into force in the host Member
of the Additional Protocol and Article 13 of Decision No 1/                       State of the legal measure of which those articles are part;
80 — Abolition of restrictions on the freedom of movement
for workers, on the freedom of establishment and on the
freedom to provide services — ‘Standstill’ clauses — Direct
effect — Scope — Legislation of a Member State requiring a
    work permit in the international road haulage sector)                    —    Article 13 of Decision No 1/80 is applicable to Turkish
                                                                                nationals only if their residence in the territory of the host
                                                                                Member State is not only lawful but for a sufficient period to
                           (2003/C 304/06)                                        allow them progressively to become integrated there;
                    (Language of the case: German)
                                                                             —    in circumstances such as those in the cases in the main
(Provisional translation; the definitive translation will be published
                                                                                proceedings, Article 41(1) of the Additional Protocol is
                    in the European Court Reports)
                                                                                applicable to international road haulage of goods originating
                                                                                in Turkey, where those services are carried out in the territory of
                                                                                a Member State;
In Joined Cases C-317/01 and C-369/01: Reference to the
Court under Article 234 EC by the Bundessozialgericht
(Germany) for a preliminary ruling in the proceedings pending
before that court between Eran Abatay and Others (C-317/01)                  —    the protection of Article 41(1) can be relied on not only by an
Nadi Sahin (C-369/01) and Bundesanstalt für Arbeit, on the                        undertaking established in Turkey which performs services in a
interpretation of Article 41(1) of the Additional Protocol                        Member State but also by the employees of such an undertaking
signed at Brussels on 23 November 1970 and concluded,                             to preclude a new restriction on the freedom to provide services;
approved and confirmed on behalf of the Community by                              however, it may not be relied on to that end by an undertaking
Council Regulation (EEC) No 2760/72 of 19 December 1972                           established in a Member State where those using the services
(JO 1972 L 293, p. 1) and of Article 13 of Decision No 1/80                       are established in the same Member State;
 ---pagebreak--- 13.12.2003               EN                            Official Journal of the European Union                                                 C 304/5
—     Article 41(1) precludes the introduction into the national               court between Adidas-Salomon AG, formerly Adidas AG,
      legislation of a Member State of a requirement of a work permit          Adidas Benelux BV and Fitnessworld Trading Ltd, on the
      in order for an undertaking established in Turkey to provide             interpretation of Article 5(2) of First Council Directive 89/
      services in the territory of that State, if such a permit was not        104/EEC of 21 December 1988 approximating the laws of the
      already required at the time of the entry into force of the              Member States relating to trade marks (OJ 1989 L 40, p. 1),
      Additional Protocol;                                                     the Court (Sixth Chamber), composed of: J.-P. Puissochet,
                                                                               President of the Chamber, C. Gulmann (Rapporteur), F. Ma-
                                                                               cken, N. Colneric and J.N. Cunha Rodrigues, Judges; F.G. Jacobs,
—     it is for the national court to determine whether the national           Advocate General; M.-F. Contet, Principal Administrator, for
      legislation applied to Turkish nationals such as the applicants          the Registrar, has given a judgment on 23 October 2003, in
      in the main proceedings is less favourable than that applicable          which it has ruled:
      at the time of the entry into force of the Additional Protocol.
(1) OJ C 303 of 27.10.2001, OJ C 348 of 08.12.2001.
                                                                               1.   A Member State, where it exercises the option provided
                                                                                by Article 5(2) of First Council Directive 89/104/EEC of
                                                                                21 December 1988 to approximate the laws of the Member
                                                                                States relating to trade marks, is bound to grant the specific
                                                                                protection in question in cases of use by a third party of a later
                                                                                mark or sign which is identical with or similar to the registered
                                                                                mark with a reputation, both in relation to goods or services
                                                                                which are not similar and in relation to goods or services which
                                                                                are identical with or similar to those covered by that mark.
                  JUDGMENT OF THE COURT
                           (Sixth Chamber)                                     2.   The protection conferred by Article 5(2) of Directive 89/104 is
                                                                                not conditional on a finding of a degree of similarity between
                                                                                the mark with a reputation and the sign such that there exists
                                                                                a likelihood of confusion between them on the part of the
                        of 23 October 2003
                                                                                relevant section of the public. It is sufficient for the degree of
                                                                                similarity between the mark with a reputation and the sign to
                                                                                have the effect that the relevant section of the public establishes
in Case C-408/01 (Reference for a preliminary ruling from                           a link between the sign and the mark.
the Hoge Raad der Nederlanden): Adidas-Salomon AG,
formerly Adidas AG, Adidas Benelux BV v Fitnessworld
                            Trading Ltd (1)
                                                                               3.   The fact that a sign is viewed as an embellishment by the
(Directive 89/104/EEC — Article 5(2) — Trade marks with                             relevant section of the public is not, in itself, an obstacle to the
a reputation — Protection against use of a sign in relation                         protection conferred by Article 5(2) of Directive 89/104 where
to identical or similar goods or services — Degree of                               the degree of similarity is none the less such that the relevant
similarity between the mark and the sign — Effect on the                            section of the public establishes a link between the sign and the
           public — Sign viewed as an embellishment)                                mark. By contrast, where, according to a finding of fact by the
                                                                                national court, the relevant section of the public views the sign
                                                                                purely as an embellishment, it necessarily does not establish any
                                                                                link with a registered mark, with the result that one of the
                           (2003/C 304/07)                                          conditions of the protection conferred by Article 5(2) of
                                                                                Directive 89/104 is then not satisfied.
                     (Language of the case: Dutch)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                             (1) OJ C 3 of 5.1.2002.
In Case C-408/01: Reference to the Court under Article 234
EC by the Hoge Raad der Nederlanden (Netherlands) for a
preliminary ruling in the proceedings pending before that


title: Case T-519/10: Action brought on 8 November 2010 — Seikoh Giken v OHIM — Seiko (SG SEIKOH GIKEN)

text:
               15.1.2011

               EN

               Official Journal of the European Union

               C 13/32

         Action brought on 8 November 2010 — Seikoh Giken v OHIM — Seiko (SG SEIKOH GIKEN)
   (Case T-519/10)
   ()
   2011/C 13/61
   Language in which the application was lodged: English

      Parties

      Applicant: Kabushiki Kaisha Seikoh Giken (Matsudo-shi, Japan) (represented by: G. Marín Raigal, P. López Ronda and G. Macias Bonilla, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

      Other party to the proceedings before the Board of Appeal: Seiko Kabushiki Kaisha (Chuo-ku, Japan)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 August 2010 in case R 1553/2009-1;

               —

               Reject in its entirety the opposition to registration of the mark applied for in respect of the goods in class 25;

               —

               Order the defendant to grant registration of the mark applied for;

               —

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

               —

               Order the other party to the proceedings before the Board of Appeal to pay the costs of the current proceedings, should it become an intervening party in this case.

      Pleas in law and main arguments

      Applicant for the Community trade mark: The applicant

      Community trade mark concerned: The figurative mark ‘SG SEIKOH GIKEN’, for goods in classes 3, 7 and 9 — Community trade mark application No 908461

      Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

      Mark or sign cited: Community trade mark registration No 2390953 of the word mark ‘SEIKO’, for goods and services in classes 1– 42

      Decision of the Opposition Division: Upheld the opposition

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: The applicant considers that the contested decision of the First Board of Appeal infringes the provisions of Council Regulation (EC) No 207/2009, hereinafter CTMR, by a misleading, incorrect interpretation and inappropriate enforcement of Article 8(1)(b) CTMR and the applicable case-law.


title: Case C-489/13: Request for a preliminary ruling from the Hof van beroep te Antwerpen (Belgium) lodged on 10 September 2013 — Ronny Verest, Gaby Gerards v Belgische Staat

text:
               30.11.2013

               EN

               Official Journal of the European Union

               C 352/7

         Request for a preliminary ruling from the Hof van beroep te Antwerpen (Belgium) lodged on 10 September 2013 — Ronny Verest, Gaby Gerards v Belgische Staat
   (Case C-489/13)
   2013/C 352/12
   Language of the case: Dutch

      Referring court

   Hof van beroep te Antwerpen

      Parties to the main proceedings

      Appellants: Ronny Verest, Gaby Gerards

      Respondent: Belgische Staat

      Question referred

   Does Article 56 of the EC Treaty preclude the taxation in one Member State, on a basis other than its local cadastral income, of immovable property situated in another Member State which is not rented out, assuming in particular in that case that the local cadastral income is determined in a similar way to the Belgian cadastral income from Belgian immovable property?


title: Case C-3/02: Reference for a preliminary ruling by the Tribunale Amministrativo Regionale per il Veneto by order of 24 October 2001 in the case of Alessandro Mosconi and the Ordine Degli Ingegneri di Verona e Provincia against Soprintendenza per i Beni Ambientali e Architittonici di Venezia — Ministero per i Beni e le Attività Culturali

text:
C 56/10               EN                    Official Journal of the European Communities                                         2.3.2002
Reference for a preliminary ruling by the Finanzgericht                (b) Do Articles 10 and 11 of Directive 85/384/EEC — which
Düsseldorf by order of that court of 19 December 2001                       state that a qualification as a civil engineer is to be treated
in the case of Privat-Molkerei Borgmann GmbH & Co. KG                       as equivalent to that of architect for the purposes of
                against Hauptzollamt Bochum                                 entitlement to provide services in the professional field of
                                                                            architecture — require a Member State not to exclude
                                                                            from entitlement to provide the services in question
                         (Case C-1/02)
                                                                            persons who have successfully completed in that Member
                                                                            State a course of studies such as those completed by
                        (2002/C 56/18)                                      those holding civil engineering qualifications in Italy?
                                                                       (c)  On the assumption that there is substantive similarity
Reference has been made to the Court of Justice of the                      between the course of studies and professional training
European Communities by order of the Finanzgericht Düssel-                  pursued by architects and by civil engineers, does the
dorf (Finance Court Düsseldorf) of 19 December 2001, which                  principle of equality, as a general principle of Community
was received at the Court Registry on 7 January 2002, for a                 law, require in any event that persons holding qualifi-
preliminary ruling in the case of Privat-Molkerei Borgmann                  cations in civil engineering be also allowed to pursue
GmbH & Co. KG against Hauptzollamt Bochum on the                            activities reserved for architects?
following question:
Does the penalty regulation in the second paragraph of Article         (1) OJ L 223 of 10.6.1985, p. 15.
3(2)of Commission Regulation (EEC) No 536/93 of 9 March
1993 (OJ EC L 57, p. 12) as amended pursuant to Commission
Regulation (EC) No 1001/98 of 13 May 1998 (OJ EC L 142,
p. 22) contravene the proportionality rule in cases where the
time-limit is exceeded only marginally and moreover without
fault?
                                                                       Action brought on 10 January 2002 by the Commission
                                                                       of the European Communities against the French Republic
Reference for a preliminary ruling by the Tribunale
                                                                                (Case C-6/02)
Amministrativo Regionale per il Veneto by order of
24 October 2001 in the case of Alessandro Mosconi and
the Ordine Degli Ingegneri di Verona e Provincia against                                         (2002/C 56/20)
Soprintendenza per i Beni Ambientali e Architittonici di
   Venezia — Ministero per i Beni e le Attività Culturali
                         (Case C-3/02)
                                                                       An action against the French Republic was brought before the
                                                                       Court of Justice of the European Communities on 10 January
                        (2002/C 56/19)                                 2002 by the Commission of the European Communities,
                                                                       represented by H. van Lier and J. Adda, acting as Agents, with
                                                                       an address for service in Luxembourg.
Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale Amministra-
tivo Regionale per il Veneto (Regional Administrative Court,           The Commission of the European Communities claims that
Venice) of 24 October 2001, received at the Court Registry on          the Court should:
8 January 2002, for a preliminary ruling in the case of
Alessandro Mosconi and the Ordine Degli Ingegneri di Verona
                                                                       —    declare that, by maintaining the national legal protection
e Provincia (Order of Engineers of the City and Province of
                                                                            afforded to the designations ‘Salaisons d’Auvergne’, ‘Label
Verona) against Soprintendenza per i Beni Ambientali e
                                                                            régional Savoie’, ‘Label régional Franche-Comté’, ‘Label
Architittonici di Venezia — Ministero per i Beni e le Attività
                                                                            régional Corse’, ‘Label régional Midi-Pyrénées’, ‘Label
Culturali (Authority responsible for the environmental and
                                                                            régional Normandie’, ‘Label régional Nord-Pas-de-Calais’,
architectural heritage of Venice — Ministry of Cultural Assets
                                                                            ‘Label régional Ardennes de France’, ‘Label régional
and Activities) on the following questions
                                                                            Limousin’, ‘Label régional Languedoc-Roussillon’, and
                                                                            ‘Label régional Lorraine’, the French Republic has failed
(a)   Must Council Directive 85/384/EEC of 10 June 1985 (1)                 to fulfil its obligations under Article 28 EC;
      be interpreted as meaning that, precisely because it lays
      down rules of minimum harmonisation, its provisions
      must be applied to purely internal situations?                   —    order the French Republic to pay the costs.