title: Case C-101/00: Reference for a preliminary ruling from the Korkein Hallinto-oikeus by order of that court of 15 March 2000 in the case of Tulliasiamies v Antti Siilin

text:
24.6.2000              EN                    Official Journal of the European Communities                                          C 176/7
Reference for a preliminary ruling from the Korkein                          May Article 90 EC (formerly Article 95 of the EC Treaty)
Hallinto-oikeus by order of that court of 15 March 2000                      be interpreted as meaning that such national tax legislation
           in the case of Tulliasiamies v Antti Siilin                       is not discriminatory, taking into account in particular that
                                                                             — the starting point is the tax on an equivalent new car,
                         (Case C-101/00)
                                                                             — under the previous law the tax was reduced only after
                                                                                a period of six months, and
                        (2000/C 176/12)                                      — under both the previous and current law the tax is
                                                                                reduced linearly as described above?
Reference has been made to the Court of Justice of the                  3. In addition to using the bases of calculation prescribed in
European Communities by an order of the Korkein Hallinto-                    the national tax legislation, is it always necessary to
oikeus (Supreme Administrative Court), Finland, of 15 March                  establish a vehicle’s individual characteristics to ensure that
2000, which was received at the Court Registry on 17 March                   the levying of motor vehicle tax does not lead, in the
2000, for a preliminary ruling in the case of Tulliasiamies v                individual case, to discrimination contrary to Article 90
Antti Siilin on the following questions:                                     EC (formerly Article 95 of the EC Treaty)?
                                                                        VAT payable on motor vehicle tax
Motor vehicle tax                                                       4. May the VAT Directive be interpreted as meaning that the
                                                                             tax called VAT payable on motor vehicle tax under
                                                                             Paragraph 5(1) of the Motor Vehicle Tax Law and Para-
1. Under Paragraph 11 of the Autoverolaki (Motor Vehicle                     graph 1(5) of the Arvonlisäverolaki (Value Added Tax Law)
    Tax Law) in determining motor vehicle tax on a vehicle                   is VAT within the meaning of the VAT Directive, taking
    imported as Community goods, the basis of the taxable                    into account that under national legislation the tax is levied
    value is the transaction value of the vehicle for the taxable            exclusively on the basis of motor vehicle tax?
    person. The transaction value is the customs value within
    the meaning of the Customs Code and Implementation
                                                                        5. If the answer to Question 4 is in the negative, may such a
    Regulation so far as applicable.
                                                                             tax nevertheless be regarded as a tax or charge the levying
                                                                             of which is permitted under Article 33 of the VAT
                                                                             Directive?
    May Article 90 EC (formerly Article 95 of the EC Treaty)
    be interpreted as meaning that such national legislation
    relating to the determination of the taxable value for motor        6. If such national tax provisions are not regarded as contrary
    vehicle tax purposes is not discriminatory, taking into                  to the VAT Directive, may Article 90 EC (formerly Article
    account in particular that the taxable value of a vehicle will           95 of the EC Treaty) be interpreted as meaning that that
    be a different amount depending on which commercial                      those tax provisions are not discriminatory within the
    level the importer of the vehicle operates at, that is,                  meaning of that article?
    whether he operates as a wholesaler, a retailer or a
    consumer?
2. Under Paragraph 7(1) of the Motor Vehicle Tax Law the
    basis of the tax levied on an imported used car is the tax
    on an equivalent new vehicle, with the reductions as laid
    down in that provision. Under the old law 1482/1994, the            Action brought on 27 March 2000 by the Kingdom of
    tax charged on an imported second-hand car was the tax              Spain against the Commission of the European Communi-
    on an equivalent new car reduced by 0,5 % for every                                                  ties
    complete calendar month calculated from the time when
    the vehicle had been registered or had been in use for six
    months, and the tax was reduced for only the first 150                                        (Case C-113/00)
    months of use. Under the current law 1160/1998, the tax
    charged on an imported second-hand car is the tax on an
                                                                                (2000/C 176/13)
    equivalent new car reduced by 0,6 % per month of use for
    the first 100 months of use and then for the next 100
    months by 0,9 % per month of use of the residual value              An action against the Commission of the European Communi-
    calculated at the end of each preceding month, and for              ties was brought before the Court of Justice of the European
    subsequent months of use by 0,4 % of the residual value             Communities on 27 March 2000 by the Kingdom of Spain,
    calculated at the end of each preceding month. Months of            represented by Santiago Ortiz Vaamonde, with an address for
    use are taken as complete calendar months from when the             service in Luxembourg at the Spanish Embassy, 4-6 Boulevard
    vehicle was first taken into use or registered.                     Emmanuel Servais.


title: Case C-19/02: Reference for a preliminary ruling by the Oberster Gerichtshof by order of that Court of 20 December 2001 in the case of Dr Viktor Hlozek against Roche Diagnostics Gesellschaft mbH

text:
C 109/22                EN                    Official Journal of the European Communities                                       4.5.2002
Reference for a preliminary ruling by the Arbejdsret by                  seamen on board that vessel can be regarded by the vessel’s
order of 25 January 2002 in the case of Danmarks                         owners as having occurred in the flag State, with the result
Rederiforening acting on behalf of DFDS Torline A/S                      that the vessel’s owners can, pursuant to Article 5(3), bring an
against LO Landsorganisation i Sverige, acting on behalf                 action for damages against the trade union in the flag State?
 of SEKO Sjöfolk Facket för Service och Kommunikation
                           (Case C-18/02)
                                                                         (1) 27 September 1968 on jurisdiction and the enforcement of
                                                                             judgments in civil and commercial matters (OJ L 204, 1975,
                          (2002/C 109/35)                                    p. 28) modified by the Convention of 26 May 1989 on the
                                                                             accession of the Kingdom of Spain and the Portuguese Republic
                                                                             with the adjustments made to them by the Convention on the
                                                                             accession of the Kingdom of Denmark, of Ireland and of the
Reference has been made to the Court of Justice of the                       United Kingdom of Great Britain and Northern Ireland and the
European Communities by order of the Arbejdsret (Labour                      adjustments made to them by the Convention on the accession of
Court) of 25 January 2002, received at the Court Registry on                 the Hellenic Republic (OJ L 285, 1989, p. 1).
29 January 2002, for a preliminary ruling in the case of
Danmarks Rederiforening (Danish Association of Shipping
Companies), acting on behalf of DFDS Torline A/S against
LO Landsorganisation i Sverige (Swedish Congress of Trade
Unions), acting on behalf of SEKO Sjöfolk Facket för Service
och Kommunikation (union representing maritime workers
in service and communications sectors) on the following
questions:
Question 1                                                               Reference for a preliminary ruling by the Oberster
                                                                         Gerichtshof by order of that Court of 20 December 2001
                                                                         in the case of Dr Viktor Hlozek against Roche Diagnostics
a)    Must Article 5(3) of the Convention (1) be construed                                       Gesellschaft mbH
      as covering cases concerning the legality of collective
      industrial action for the purpose of securing an agreement
      in a case where any harm which may result from the                                           (Case C-19/02)
      illegality of such collective action gives rise to liability to
      pay compensation under the rules on tort, delict or quasi-
      delict, such that a case concerning the legality of notified
      collective industrial action can be brought before the                                      (2002/C 109/36)
      courts of the place where proceedings may be instituted
      for compensation in respect of any harm resulting from
      that industrial action?
b)    Is it necessary, as the case may be, that any harm incurred        Reference has been made to the Court of Justice of the
      must be a certain or probable consequence of the                   European Communities by order of the Oberster Gerichtshof
      industrial action concerned in itself, or is it sufficient that    (Supreme Court) of 20 December 2001, received at the Court
      that industrial action is a necessary condition governing,         Registry on 29 January 2002, for a preliminary ruling in the
      and may constitute the basis for, sympathy actions which           case of Dr Viktor Hlozek against Roche Diagnostics Gesell-
      will result in harm?                                               schaft mbH on the following questions:
c)    Does it make any difference that implementation of
      notified collective industrial action was, after the proceed-
      ings had been brought, suspended by the notifying party            1.a)     Are Article 141 EC and Article 1 of Council Directive
      until the court’s ruling on the issue of its legality?             75/117/EEC of 10 February 1975 on the approximation of
                                                                         the laws of the Member States relating to the application of
                                                                         the principle of equal pay for men and women (OJ 1975 L 45,
                                                                         p. 19) to be interpreted
Question 2
                                                                         where an employer which dismisses a large group of employees
Must Article 5(3) of the Convention be construed as meaning              as a result of a merger with another company is required, on
that damage resulting from collective industrial action                  account of its social obligation towards the entire workforce,
implemented by a trade union in a country to which a vessel              to agree with the works council a social plan, which is binding
registered in another country (the flag State) sails for the             in relation to the employees, in order to alleviate the effects of
purpose of securing an agreement covering the work of                    dismissal, in particular the risk of age-related unemployment,
 ---pagebreak--- 4.5.2002               EN                     Official Journal of the European Communities                                        C 109/23
as precluding a social plan under which all female employees             3.b)     Is this directive to be interpreted as precluding a social
aged 50 and over at the time of their dismissal and all male             plan under which all female employees aged 50 and over at
employees aged 55 and over at the time of their dismissal are            the time of their dismissal and all male employees aged 55 and
entitled, irrespective of the period of employment, that is to           over at the time of their dismissal are entitled, irrespective of
say with no account being had to any ‘qualification periods’             the period of employment, that is to say with no account
and solely on the basis of age — or to the fact that the risk of         being had to any ‘qualification periods’ and solely on the basis
long-term unemployment for men and for women generally                   of age — or to the fact that the risk of long-term unemploy-
differs according to their age &mdash, to a ‘bridging allowance’         ment for men and for women generally differs according to
amounting to 75 % of their final gross monthly salary for five           their age —, to a ‘bridging allowance’ amounting to 75 % of
years, but at most until they become entitled to a statutory             their final gross monthly salary for five years, but at most until
pension?                                                                 they become entitled to a statutory pension?
1.b)     In particular, is the concept of pay in Article 141 EC
and Article 1 of the directive to be construed as including, in
the case of benefits which are related not to work performed
but solely to membership of a workforce and the social
obligation on the employer, allowance for the risk of long-
term unemployment so that pay must regarded as equal where
— overall — it covers the same degree of risk even though
this risk normally occurs in different age groups in the case of         Reference for a preliminary ruling by the Oberlandesge-
men and women?                                                           richt Innsbruck by order of that Court of 14 January
                                                                         2002 in the case of Petra Engler against Janus Versand
                                                                                Gesellschaft m.b.H.
1.c)     Or can, if the concept of ‘pay’ in these provisions after
all covers only the cash benefit as such, the varying risk thus                                     (Case C-27/02)
construed justify different treatment of men and women?
                                                                                (2002/C 109/37)
2.     Is the concept of ‘occupational social security schemes’
within the meaning of Article 2(1) of Council Directive
86/378/EEC of 24 July 1986 on the implementation of
the principle of equal treatment for men and women in                    Reference has been made to the Court of Justice of the
occupational social security schemes (OJ 1986 L 225, p. 40),             European Communities by order of the Oberlandesgericht
as amended by Council Directive 96/97/EC of 20 December                  (Higher Regional Court) Innsbruck of 14 January 2002,
1996 (OJ 1996 L 46, p. 20), to be construed as including                 received at the Court Registry on 31 January 2002, for a
bridging allowances in the above sense?                                  preliminary ruling in the case of Petra Engler against Janus
                                                                         Versand Gesellschaft m.b.H. on the following questions:
                                                                         For the purposes of the Brussels Convention on Jurisdiction
Is the concept of the risk of ‘old age, including early retirement’      and the Enforcement of Judgments in Civil and Commercial
in Article 4 of the directive to be construed as including such          Matters of 27 September 1968 (‘the Convention’), does the
‘bridging allowances’?                                                   provision in Paragraph 5j of the Austrian Konsumentenschutz-
                                                                         gesetz (Consumer Protection Law) (‘KSchG’), BGBl. 1979/140,
                                                                         in the version of Paragraph 1(2), of the Austrian Fernabsatz-
                                                                         Gesetz (Distance Selling Law), BGBl. I 1999/185, which entitles
Does the concept of ‘scheme’ in Article 6(1)(c) of the directive         consumers to claim from undertakings in the courts prizes
cover only the question of fulfilment of the requirements for            ostensibly won by them where the undertakings send (or have
entitlement to the bridging allowance or also membership of              sent) them prize notifications or other similar communications
the workforce as a whole?                                                worded so as to give the impression that they have won a
                                                                         particular prize, also constitute:
3.a)     Is Council Directive 76/207/EEC of 9 February 1976              1.    a contractual claim under Article 13(3); or
on the implementation of the principle of equal treatment for
men and women as regards access to employment, vocational                2.    a contractual claim under Article 5(1); or
training and promotion, and working conditions (OJ 1976
L 39, p. 40) to be interpreted to the effect that the ‘bridging
allowance’ described above constitutes a condition governing             3.    a claim in respect of a tort, delict or quasi-delict under
dismissal within the meaning of Article 5 of this directive?                   Article 5(3)


title: Case T-701/14: Action brought on 22 September 2014 — Niche Generics v Commission

text:
               1.12.2014

               EN

               Official Journal of the European Union

               C 431/38

         Action brought on 22 September 2014 — Niche Generics v Commission
   (Case T-701/14)
   (2014/C 431/61)
   Language of the case: English

      Parties

      Applicant: Niche Generics Ltd (Hitchin, United Kingdom) (represented by: E. Batchelor, M. Healy, Solicitors, and F. Carlin, Barrister)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision;

               —

               annul or in any event reduce the amount of the fine; and

               —

               order the Commission to pay its own costs and the applicant’s costs in connection with these proceedings.

      Pleas in law and main arguments

   By its present action, the applicant seeks the annulment, in part, of Commission Decision C(2014) 4955 final of 9 July 2014 in case AT.39612 — Perindopril (Servier).
   In support of the action, the applicant relies on eleven pleas in law.

               1.

               First plea in law, alleging that the Commission failed to apply the correct ‘objective necessity’ legal test to determine whether the patent settlement agreement between the applicant and Servier falls within Article 101(1) TFEU.

               2.

               Second plea in law, alleging that the Commission breached the principle of equal treatment by not applying the Technology Transfer Block Exemption Regulation Guidelines to the applicant’s settlement.

               3.

               Third plea in law, alleging that the Commission erred in law by categorising the settlement as a violation ‘by object’ of Article 101(1) TFEU.

               4.

               Fourth plea in law, alleging that the Commission misapplied its own ‘infringement by object’ legal test to the specific facts relating to the applicant.

               5.

               Fifth plea in law, alleging that the Commission erred in law by concluding that the settlement agreement had anticompetitive effects.

               6.

               Sixth plea in law, alleging in the alternative that the Commission erred in law by not recognising that the settlement agreement satisfies the exemption criteria under Article 101(3) TFEU.

               7.

               Seventh plea in law, alleging that the Commission breached the applicant’s rights of defence and the principle of sound administration by acting oppressively in its investigation in relation to documents covered by legal privilege.

               8.

               Eighth plea in law, alleging that the Commission breached the principle of equal treatment in its calculation of the fine by treating the applicant differently than Servier without objective justification.

               9.

               Ninth plea in law, alleging that the Commission breached the principle of proportionality, its own fining guidelines and prior established practice when it imposed a fine on the applicant.

               10.

               Tenth plea in law, alleging that the Commission violated Article 23(2) of Regulation No 1/2003 (1) by exceeding the maximum 10 % cap on fines.

               11.

               Eleventh plea in law, alleging that the Commission violated its duty to state reasons pursuant to Article 296 TFEU in respect of its fine calculation and its assessment of the gravity of the applicant’s infringement.

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 101 TFEU and 102 TFEU (OJ 2003 L 1, p. 1).


title: Case C-180/15: Judgment of the Court (Sixth Chamber) of 8 September 2016 (request for a preliminary ruling from the Nacka tingsrätt — Mark- och miljödomstolen — Sweden) — Borealis AB and Others (Reference for a preliminary ruling — Scheme for greenhouse gas emission allowance trading within the European Union — Directive 2003/87/EC — Article 10a — Method of allocating free allowances — Calculation of the uniform cross-sectoral correction factor — Decision 2013/448/EU — Article 4 — Annex II — Validity — Determination of the product benchmark for hot metal — Decision 2011/278/EU — Annex I — Validity — Article 3(c) — Article 7 — Article 10(1) to (3) and 8 — Annex IV — Free allowances for the consumption and for the export of heat — Measurable heat exported to private households — Prohibition on double-counting of emissions and of double allocation of allowances)

text:
               31.10.2016

               EN

               Official Journal of the European Union

               C 402/7

         Judgment of the Court (Sixth Chamber) of 8 September 2016 (request for a preliminary ruling from the Nacka tingsrätt — Mark- och miljödomstolen — Sweden) — Borealis AB and Others
   (Case C-180/15) (1)

   ((Reference for a preliminary ruling - Scheme for greenhouse gas emission allowance trading within the European Union - Directive 2003/87/EC - Article 10a - Method of allocating free allowances - Calculation of the uniform cross-sectoral correction factor - Decision 2013/448/EU - Article 4 - Annex II - Validity - Determination of the product benchmark for hot metal - Decision 2011/278/EU - Annex I - Validity - Article 3(c) - Article 7 - Article 10(1) to (3) and 8 - Annex IV - Free allowances for the consumption and for the export of heat - Measurable heat exported to private households - Prohibition on double-counting of emissions and of double allocation of allowances))
   (2016/C 402/09)
   Language of the case: Swedish

      Referring court

   Nacka tingsrätt — Mark- och miljödomstolen

      Parties to the main proceedings

      Applicants: Borealis AB, Kubikenborg Aluminum AB, Yara AB, SSAB EMEA AB, Lulekraft AB, Värmevärden i Nynäshamn AB, Cementa AB, Höganäs Sweden AB

      Defendant: Naturvårdsverket

      Operative part of the judgment

               1.

               Examination of the first, second and thirteenth questions has revealed no factor of such a kind as to affect the validity of Commission Decision 2011/278/EU of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council.

               2.

               Examination of the fifth question referred has revealed no factor of such a kind as to affect the validity of Annex I to Decision 2011/278.

               3.

               Article 4 of, and Annex II to, Commission Decision 2013/448/EU of 5 September 2013 concerning national implementation measures for the transitional free allocation of greenhouse gas emission allowances in accordance with Article 11(3) of Directive 2003/87/EC of the European Parliament and of the Council are invalid.

               4.

               The temporal effects of the declaration of invalidity of Article 4 of, and Annex II to, Decision 2013/448 are limited so that, first, that declaration does not produce effects until 10 months following the date of delivery of the judgment in Borealis Polyolefine and Others (C-191/14, C-192/14, C-295/14, C-389/14 and C-391/14 to C-393/14, EU:C:2016:311), so as to enable the European Commission to adopt the necessary measures and, second, measures adopted during that period on the basis of the invalidated provisions cannot be called into question.

               5.

               Article 10a of Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC as amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009, and Article 10(1) to (3) and (8) of Decision 2011/278 must be interpreted as permitting, in order to avoid a double allocation, non-allocation of allowances to a heat benchmark sub-installation when it exports, to private households, heat which it has recovered from a fuel benchmark sub-installation.

               6.

               Article 10(8) of Decision 2011/278 must be interpreted as precluding free greenhouse gas emission allowances being allocated to an operator for the consumption, in a heat benchmark sub-installation, of heat taken into account in connection with a fuel benchmark sub-installation.

               7.

               Article 7 of, and Annex IV to, Decision 2011/278 must be interpreted as allowing a Member State, when collecting the data covered by those provisions, not to take into account all the emissions related to the heat production exported by a heat benchmark sub-installation to private households in order to avoid double counting.

               8.

               Article 10a(1) and (4) of Directive 2003/87, as amended by Directive 2009/29, and Article 10(3) of Decision 2011/278 must be interpreted as permitting the non-allocation of additional free greenhouse gas emission allowances related to the production of measurable heat by burning waste gases generated by a hot metal benchmark installation, when the amount of greenhouse gas emission allowances determined based on the heat benchmark is lower than the median annual historical emissions related to the production of that heat.

               9.

               Article 7 of, and Annex IV to, Decision 2011/278 must be interpreted as not precluding a Member State, when collecting the data covered by those provisions, from adjusting the figures obtained by the Member State so that the greenhouse gas emissions attributable to the combustion of waste gases by a heat benchmark sub-installation are equivalent to those from the combustion of natural gas, in so far as a product benchmark takes account of emissions linked to the production of waste gases.

               10.

               Article 3(c), of Decision 2011/278 must be interpreted as meaning that the concept of ‘heat benchmark sub-installation’ includes the activity of exporting the measurable heat from an installation subject to the greenhouse gas emissions trading system to a steam network when the latter network can be qualified as an ‘installation or other entity not covered by the Union scheme’.

      (1)  OJ C 205, 22.6.2015.


title: Judgment of the Court (Third Chamber) of 16 June 2005 in Case C-125/02: European Parliament v HDI International (Arbitration clause — Insurance policies — Termination on grounds of increase of the risk insured — Abuse — Contractual liability — Damages)

text:
               6.8.2005

               EN

               Official Journal of the European Union

               C 193/2

      JUDGMENT OF THE COURT

   (Third Chamber)
   of 16 June 2005
   in Case C-125/02: European Parliament v HDI International (1)

   (Arbitration clause - Insurance policies - Termination on grounds of increase of the risk insured - Abuse - Contractual liability - Damages)
   (2005/C 193/03)
   Language of the case: French
   In Case C-125/02 European Parliament (Agents: D. Petersheim, O. Caisou-Rousseau and M. Ecker) v HDI International (Lawyers: J.-L. Fagnart and L. Vael) — action brought on 5 April 2002 under Article 238 EC — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, R. Schintgen (Rapporteur) and K. Schiemann, Judges; P. Léger, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, gave a judgment on 16 June 2005, in which it:

               1.

               Holds that the termination of the guarantees in contract no. 5.013.347 notified by HDI International to the European Parliament on 30 October 2001 as well as on 13 and 20 November 2001 constitutes a wrongful termination of that contract;

               2.

               Orders HDI International to compensate the damage caused to the European Parliament as a result of the wrongful termination of contract no. 5.013.347;

               3.

               Holds that the sum due as compensation for the damage which HDI International caused the European Parliament is obtained by multiplying the sum of EUR 389 291,73 by the percentage of premiums which HDI International would have received out of the total of those which the European Parliament should have paid the four co-assurors in respect of the guarantees for the year 2002 and by deducting from the product thus obtained the sum which that institution should have paid HDI International in respect of the cover for its assets in France against all material damage for the year 2002;

               4.

               Holds that the sums due to the European Parliament by HDI International generate interest with effect from 4 April 2002 at the statutory rate applicable in France;

               5.

               Orders HDI International to pay the costs.

      (1)  OJ C 144, 15.06.2002.


title: ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE of 7 November 1995 in Case T-168/95 R: Eridania Zuccherifici Nazionali SpA and Others v. Council of the European Union

text:
No C 16/ 14            EN                  Official Journal of the European Communities                                    20 . 1 . 96
1 , the application is dismissed as inadmissible;                            ORDER OF THE COURT OF FIRST INSTANCE
                                                                                of 13 November 1995
2, there is no need to rule on the application to                     in Case T-128/95 : Aéroports de Paris v. Commission of the
     intervene;                                                                            European Communities (*)
                                                                      (Refusal by the Commission to initiate Treaty infringement
3 , the applicant is ordered to bear its own costs and to pay         proceedings — Action for annulment — Action for
     the costs of the Commission. The Hellenic Republic is                       declaration of failure to act — Inadmissible)
     ordered to bear the costs incurred by it in connection                                         ( 96/C 16/32 )
     with the submission of its application to intervene.
                                                                                (Language of the case: French)
(!) OJ No C 208 , 12 . 8 . 1995 .
                                                                      In Case T-128/95 : Aéroports de Paris, established in Paris,
                                                                      represented by Hugues Calvet, of the Paris Bar, with an
                                                                      address for service in Luxembourg at the Chambers of
                                                                      Aloyse May, 31 Grand-Rue, v. Commission of the
                                                                      European Communities ( Agent: Henrik van Lier ) —
                                                                      application, primarily, for annulment of the decision of the
     ORDER OF THE COURT OF FIRST INSTANCE                             Commission of 29 March 1995 not to initiate proceedings
                     of 13 November 1995                              against the Hellenic Republic for infringement of
                                                                      Community law with respect to the award of the public
    in Case T-127/95 : Société auxiliaire d'entreprises v.            contract for the new Athens airport on the Spata site,
        Commission of the European Communities ( J )                  alternatively, for a declaration that the Commission has
(Refusal by the Commission to initiate Treaty infringement            failed to act — the Court of First Instance (Third Chamber),
proceedings — Action for annulment — Action for                       composed of C.P. Briët, President, and B. Vesterdorf and A.
         declaration of failure to act — Inadmissible)                Potocki, Judges; H. Jung, Registrar, made an order on
                            { 96/C 16/31 )                             13 November 1 995 , the operative part of which is as
                                                                      follows :
                 (Language of the case: French)                        1 , the application is dismissed as inadmissible;
In Case T-127/95 : Société auxiliaire d'entreprises,                  2 , there is no need to rule on the application to
established at Issy-les-Molineaux ( France ), represented by                 intervene;
Alexandre Carnelutti, of the Paris Bar, v. Commission of the
European Communities ( Agent: Henrik van Lier ) —
application, primarily, for the annulment of the decision of          3 , the applicant is ordered to bear its own costs and to pay
the Commission of 29 March 1995 not to initiate                              the costs of the Commission. The Hellenic Republic is
proceedings against the Hellenic Republic for infringement                   ordered to bear the costs incurred by it in connection
of Community law with respect to the award of the public                     with the submission of its application to intervene.
contract for the new Athens airport on the Spata site,
alternatively, for a declaration that the Commission has               f 1 ) OJ No C 208 , 12 . 8 . 1995 .
failed to act — the Court of First Instance (Third Chamber ),
composed of C.P. Briët, President, and B. Vesterdorf and A.
Potocki, Judges; H. Jung, Registrar, made an order on
 13 November 1995 , the operative part of which is as
follows :
                                                                                ORDER OF THE PRESIDENT
 1 , the application is dismissed as inadmissible;                                OF THE COURT OF FIRST INSTANCE
                                                                                of 7 November 1995
2 , there is no need to rule on the application to                     in Case T-168/95 R: Eridania Zuccherifici Nazionali SpA
      intervene;                                                                and Others v. Council of the European Union
                                                                                96/C 16/33 )
 3 , the applicant is ordered to bear its own costs and to pay
      the costs of the Commission. The Hellenic Republic is                              (Language of the case: Italian)
      ordered to bear the costs incurred by it in connection
      with the submission of its application to intervene.             In Case T- 1 68/95 R: Eridania Zuccherifici Nazionali SpA,
                                                                       established in Genoa ( Italy ), Industria Saccarifera Italiana
 (') OJ No C 208 , 12 . 8 . 1995 .                                     Agroindustriale SpA (ISI ), established in Padua (Italy ),
                                                                        Sadam Zuccherifici, established in Bologna ( Italy ), Sadam
                                                                        Castiglionese SpA, established in Bologna, Sadam Abruzzo
                                                                        SpA, established in Bologna, Zuccherificio del Molise SpA,
 ---pagebreak--- 20 . 1 . 96            EN                 Official Journal of the European Communities                                    No C 16/ 15
established in Termoli ( Italy), Societâ Fondiaria Industriale       Pursuant to Article 92 ( 3 ) of the Treaty, the Commission
Romagnola SpA ( SFIR ), established in Cesena ( Italy),              made the authorization of that aid subject to a number of
Ponteco Zuccheri SpA, established in Pontelagoscuro                  conditions, some entailing specific legal obligations of a
( Italy ), represented by Bernard O'Connor, Solicitor, and by        highly restrictive nature, with which the applicant must
Ivano Vigliotti and Paolo Crocetta, of the Genoa Bar, with           comply. In particular, the applicant is required to:
an address for service in Luxembourg at the Chambers of
Arsène Kronshagen, 12 Boulevard de la Foire, against the
Council of the European Union ( Agents : Jan-Peter Hix and           — reduce Iritecna's liquidation debts by selling all its assets
Marco-Umberto Moricca ) — application for suspension of                  to (private ) third parties and assigning the proceeds to
the operation of Article 1 ( f) of Council Regulation ( EC )             cover those debts,
No 1534/95 of 29 June 1995 fixing, for the 1995/96
marketing year, the derived intervention prices for white            — assign the entire proceeds of that sale, to be set off
sugar, the intervention price for raw sugar, the minimum                 against Iritecna's debts, even if those proceeds exceed the
prices for A and B beet, and the amount of compensation for              amount forecast in the decision; the Commission
storage costs ( OJ No L 148 , p . 11 ) — the President of the            estimated that the privatization of Fintecna might raise
Court of First Instance made an order on 7 November 1995 ,
                                                                         Lit 1 653 billion, matching the price paid by Fintecna for
the operative part of which is as follows:                               the Iritecna shares .
1 . the application for the adoption of interim measures is
      dismissed:                                                     The applicant claims, first, that the Commission cannot
                                                                     require it to reduce the aid deriving from Iritecna's
2 , the costs are reserved.                                          liquidation by selling all its assets to private third parties and
                                                                     setting the proceeds against Iritecna's debts. The applicant
                                                                     maintains that the aid in question was directly
                                                                     proportionate to the liquidation and restructuring effected
                                                                     and could therefore be authorized in accordance with the
                                                                     criteria laid down by the Commission itself concerning State
                                                                     aids for the restructuring of undertakings .
Action brought on 16 October 1995 by Fintecna SpA
   against the Commission of the European Communities
                        ( Case T-193/95                              Secondly, the applicant submits that, even assuming that it
                                                                     was under an obligation to help reduce Iritecna's debts, the
                           ( 96/C 16/34 )
                                                                     Commission has made its performance of that obligation
                                                                     subject to conditions which are excessively restrictive and
                  (Language of the case: Italian)                    totally unjustified.
                                   %
An action against the Commission of the European
Communities was brought before the Court of First                    As regards the need to prevent the distortion of competition,
Instance of the European Communities on 16 October 1995              the applicant points out that the sacrifices made in terms of
by Fintecna SpA, whose registered office is in Rome (Italy),         reducing the group's economic capacity more than qualify
represented by Professor Antonio Tizzano and Gian                    for the aid in question. Furthermore, that aid merely covered
Michele Roberti, both of the Naples Bar, with an address for         the costs directly connected with the restructuring and
service in Brussels at the Chambers of Professor Tizzano,            liquidation of Iritecna , and did not finance any other
36 Place du Grand Sablon .                                           intervention liable to distort competition.
The applicant claims that the Court should :                         Nor can it be contended that the contested conditions are
— annul Article 1 (4 ) of the contested Decision,
                                                                     justifiable in view of the fact that the undertaking's property
                                                                     is publicly, not privately, owned. That would be contrary to
                                                                     the principle of equal treatment of private and public
— order the Commission to pay the costs.                             undertakings laid down by Articles 222 and 90 of the
                                                                     Treaty.
Pleas in law and main arguments adduced in support:
The applicant, a company in which the IRI has a 100%                 Lastly, the applicant asserts that, in the present case, the
controlling interest and to which the assets of Iritecna ( an        Commission should merely have verified that, of all the
IRI subholding, subsequently placed in liquidation), which           various possible options, the plan drawn up by the holding
were either economically viable or potentially such if               company ( IRI ) constituted the most reasonable choice from
removed from Iritecna during its restructuring, were                 the financial point of view.
transferred for Lit 1 653 billion, seeks the partial annulment
of the Commission's Decision of 7 June 1995 concerning aid
of approximately ECU 2 116 million granted to Iritecna by
the Italian State .


title: References for a preliminary ruling by the Tribunal de Grande Instance d'Epinal by judgments of that court of 25 June 1998 in the cases of Lomboley SA and Mr René Bouctot respectively against l'Administration des Impôts (Cases C-231/98 and C-232/98)

text:
5.9.98                EN                 Official Journal of the European Communities                                 C 278/17
Reference for a preliminary ruling by the Tribunale di              multiplication coefficient used for setting the tax payable
Treviso by order of that court of 10 June 1998 in the case          for each band of vehicular fiscal horsepower increases
of Amministrazione delle Finanze dello Stato v. Fallimento          unevenly, without reference to any objective criteria, so
                    Ditta Schiavon Silvano                          that the rise in tax is clearly linear up to the 18 CV tax
                       (Case C-230/98)                              band but then becomes sharply exponential from the
                                                                    19 CV band, this being the first band in which there is no
                         (98/C 278/27)                              vehicle of domestic manufacture?
Reference has been made to the Court of Justice of the
European Communities by an order of the Tribunale di
Treviso (District Court, Treviso), which was received at
the Court Registry on 30 June 1998, for a preliminary
ruling in the case of Amministrazione delle Finanze dello           Reference for a preliminary ruling from the Bundesfinanz-
Stato (State Finance Administration) v. Receiver in                 hof, by order of that court of 28 April 1998, in the case of
bankruptcy of the firm Schiavon Silvano, on the follwing            Hauptzollamt Neubrandenburg v. Lensing & Brockhausen
questions:                                                                                GmbH
                                                                                (Case C-233/98)
1. Whether Article 1 of Council Regulation (EEC)                                             (98/C 278/29)
    No 545/92 (1) must be regarded as immediately
    conferring upon Community citizens a subjective right
    to relief from duty and tax on imports, with the result         Reference has been made to the Court of Justice of the
    that, in the absence of any indication of the authority         European Communities by order of the Bundesfinanzhof
    empowered to issue certificates of origin in the case of        (Federal Finance Court) of 28 April 1998, received at the
    certain former Yugoslav Republics, that right                   Court Registry on 2 July 1998, for a preliminary ruling in
    continues to exist even where a certificate has been            the case of Hauptzollamt Neubrandenburg v. Lensing &
    issued by the body previously authorised, until such            Brockhausen GmbH on the following questions:
    time as the new body is designated;
                                                                    1. Is the first subparagraph of Article 36(3) of Council
2. Whether, on the contrary, the list in Annex I to                     Regulation (EEC) No 222/77 (1) in conjunction with
    Commission Regulation (EEC) No 859/92 (2) is                        Article 11a(2) of Commission Regulation (EEC)
    exhaustive and deprives the Savezni Trzisni                         No 1062/87 (2) to be interpreted as meaning that, in
    Inspektorat of any authority to issue certificates.                 the event of a failure to produce a consignment at the
                                                                        office of destination, the Member State of departure
(1) OJ L 63, 7.3.1992, p. 1.                                            has jurisdiction to levy import taxes only where the
(2) OJ L 89, 4.4.1992, p. 26.                                           period of three months laid down in the second
                                                                        subparagraph of Article 11a(2) of Regulation (EEC)
                                                                        No 1062/87 has previously been set for the principal
                                                                        and he has not furnished the proof required by that
                                                                        provision?
References for a preliminary ruling by the Tribunal de              2. If question 1 is to be answered in the affirmative: Is
Grande Instance d'Epinal by judgments of that court of                  the third subparagraph of Article 36(3) of Regulation
25 June 1998 in the cases of Lomboley SA and Mr ReneÂ                   (EEC) No 222/77 to be interpreted as meaning that it
  Bouctot respectively against l'Administration des Impôts              is to be applied also in a case in which a customs
               (Cases C-231/98 and C-232/98)                            office of the Member State of departure has levied
                                                                        taxes due in respect of goods cleared for the transit
                         (98/C 278/28)                                  procedure but has not set a time limit in accordance
                                                                        with the second subparagraph of Article 11a(2) of
                                                                        Regulation (EEC) No 1062/87, the result being that
Reference has been made to the Court of Justice of the                  the Member State of departure may refund the taxes
European Communities by judgments of the Tribunal de                    which it has assessed and levied without jurisdiction
Grande Instance d'Epinal (Regional Court, Epinal), of                   only where it is proved that the Member State in
25 June 1998, received at the Court Registry on 2 July                  which the offence or irregularity actually took place
1998, for a preliminary ruling in the cases of Lamboley                 has levied the taxes? Is a distinction to be drawn
SA and Mr ReneÂ Bouctot respectively against                            between taxes levied as own resources of the
l'Administration des Impôts (the Tax Authority) on the                  Community and other (national) taxes?
following question:
                                                                    (1) OJ L 38, 9.2.1977, p. 1.
                                                                    (2) OJ L 107, 22.4.1987, p. 1.
Is Article 95 of the EC Treaty to be interpreted as
precluding the application of legislation introducing a
system for taxing motor vehicles under which the


title: Judgment of the Court of First Instance of 27 June 2002 of 27 June 2002 in Joined Cases T-373/00, T-27/01, T-56/01 and T-69/01: Carmine Salvatore Tralli v European Central Bank (Officials — Staff of the European Central Bank — Extension of trial period — Dismissal during trial period — Admissibility — Manifest error of assessment — Statement of reasons — Costs)

text:
C 202/24                EN                       Official Journal of the European Communities                                      24.8.2002
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                     JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 27 June 2002
                          of 11 June 2002
                                                                            of 27 June 2002 in Joined Cases T-373/00, T-27/01, T-56/
                                                                            01 and T-69/01: Carmine Salvatore Tralli v European
in Case T-365/00: Alsace International Car Service SARL                                               Central Bank (1)
                (AICS) v European Parliament (1)
                                                                            (Officials — Staff of the European Central Bank — Exten-
                                                                            sion of trial period — Dismissal during trial period —
(Public contracts for the provision of services — Transport                 Admissibility — Manifest error of assessment — Statement
of persons using vehicles with drivers during sessions of the                                       of reasons — Costs)
  Parliament in Strasbourg — Conformity with French law)
                                                                                (2002/C 202/36)
                          (2002/C 202/35)                                                      (Language of the case: German)
                     (Language of the case: French)
                                                                            In Joined Cases T-373/00, T-27/01, T-56/01 et T-69/01:
                                                                            Carmine Salvatore Tralli, former employee of the European
                                                                            Central Bank, residing in Nidderau (Germany), represented by
                                                                            N. Pflüger, R. Steiner and S. Mittländer, lawyers, with an
                                                                            address for service in Luxembourg, against European Central
                                                                            Bank (Agents: A. Sáinz de Vicuña Barroso, M. Benisch,
In Case T-365/00, Alsace International Car Service SARL                     V. Saintot and B. Wägenbaur) — applications for annulment
(AICS), established in Strasbourg (France), represented by                  of the decision of 18 September 2000 extending the trial
J.C. Fourgoux and J.L. Fourgoux, lawyers, with an address                   period in respect of the applicant’s employment contract, the
for service in Luxembourg, v European Parliament (Agents:                   decision of 29 November 2000 dismissing the applicant, the
O. Caisou-Rousseau and D. Peterheim): Application for annul-                decisions rejecting complaints relating to the abovementioned
ment of the European Parliament’s decision of 4 October                     decisions to extend the trial period and to dismiss the applicant
2000 rejecting the applicant’s request of 5 September 2000                  and an application for a finding that the President of the
concerning the validity of the contract entered into between                European Central Bank failed to act when he unlawfully
the Parliament and Coopérative Taxi 13 and, secondly, for                   refrained from replying to the complaint lodged by the
damages for the loss allegedly suffered by the applicant as a               applicant against the decision to extend the trial period — the
result of that decision, the Court of First Instance (Fifth                 Court of First Instance (Third Chamber), composed of M. Jae-
Chamber), composed of: J.D. Cooke, President, R. Garcı́a-                   ger, President, K. Lenaerts and J. Azizi, Judges; D. Christensen,
Valdecasas and P. Lindh, Judges; D. Christensen, Administrator,             Administrator, for the Registrar, gave a judgment on 27 June
for the Registrar, has given a judgment on 11 June 2002, in                 2002, in which it:
which it:
                                                                            1.    Joined Cases T-373/00, T-27/01, T-56/01 and T-69/01 for
                                                                                the purposes of the judgment.
1.    Annuls the Parliament’s decision of 4 October 2000 rejecting
      the applicant’s request of 5 September 2000;                          2.    Dismisses Case T-373/00.
                                                                            3.    Finds that there is no need to adjudicate in Cases T-27/01,
2.    Rejects the claim for compensation;                                         T-56/01 and T-69/01.
                                                                            4.    Orders each party in Case T-373/00 to bear its own costs.
3.    Orders the Parliament to pay the costs including those reserved
      by the order of the Court of First Instance of 8 May 2001.
                                                                            5.    Orders the applicant in Cases T-27/01, T-56/01 and T-69/
                                                                                01 to bear his own costs and pay a third of those incurred by
                                                                                the defendant.
(1) OJ C 28 of 27.1.2001.
                                                                            (1) OJ C 61 of 24.2.2001, C 134 of 5.5.2001, C 150 of 19.5.2001
                                                                                and C 173 of 16.6.2001.


title: Case C-158/00: Action brought on 27 April 2000 by the Grand Duchy of Luxembourg against the Commission of the European Communities

text:
24.6.2000             EN                    Official Journal of the European Communities                                         C 176/17
— With regard to the extent of the parcel of land to be                     part of the expenses declared pursuant to Article 7(1) of
     grubbed up: incorrect interpretation and application of                Commission Regulation (EC) No 296/96 (3) be excluded
     Article 2 of Regulation No 2505/95 and Article 2 of                    from Community financing in respect of a period not
     Regulation No 2684/95.                                                 exceeding 24 months prior to the date of formal receipt of
                                                                            the notice. It follows that a refusal of financing cannot
— With regard to delivery notes and weight notes: misinter-                 affect expenses incurred before 26 May 1996.
     pretation of Article 15 of Regulation No 1558/91 and
     incorrect assessment of the facts.                                — Erroneous reasoning in that the decision does not take
                                                                            account of the evidence put forward by the Grand Duchy
— With regard to the serious deficiencies in the system of                  of Luxembourg for the correct assessment of the financial
     control which are relied upon (Articles 15 and 16 of                   consequences of the irregularities found:
     Regulation No 1558/91: absence of reports and checks):
     misinterpretation of Article 16 of Regulation No 1558/91               — The Commission generalises the defects found by
     and incorrect assessment of the facts.
                                                                                challenging the whole system of administrative and
                                                                                on-the-spot controls;
                                                                            — The defects should be viewed in an overall context and
                                                                                in their true perspective in order to assess their
                                                                                significance (the financial corrections proposed bear
                                                                                no relation to the financial interests affected);
Action brought on 27 April 2000 by the Grand Duchy of                       — The Commission failed to take into account and give
Luxembourg against the Commission of the European                                credit for the many efforts to improve and perfect the
                         Communities                                             integrated system made since it was established (both
                                                                                in relation to the processing and computerised moni-
                                                                                toring of applications and in relation to the training of
                        (Case C-158/00)                                          controllers and improvement of the monitoring and
                                                                                investigative documents). The Grand Duchy of Luxem-
                        (2000/C 176/29)                                          bourg considers that it has proved that the Commission
                                                                                made a manifest error of assessment as to the financial
                                                                                consequences to be drawn from the irregularities
An action against the Commission of the European Communi-                        discovered by refusing to take account of the evidence
ties was brought before the Court of Justice of the European                     put forward.
Communities on 27 April 2000 by the Grand Duchy of
Luxembourg, represented by Ferdinand Hofstetter, acting as
Agent, assisted by Roger Nothar, of the Luxembourg Bar, with           — Infringement of the guidelines in Document VI/5330/97
an address for service in Luxembourg at the chambers of Roger               and of the principle of proportionality: The extenuating
Nothar, 99 Avenue du Bois.                                                  circumstance relied upon by the Grand Duchy of Luxem-
                                                                            bourg, proposed by the Conciliation Body and laid down
                                                                            by the guidance document was dismissed by the Com-
The applicant claims that the court should:                                 mission on the ground that the European Parliament insists
                                                                            that the Commission apply the correction factors until the
— annul Commission Decision C(2000) 488 of 1 March                          deficiencies found have been eliminated. That rigorous
     2000, excluding certain expenses by the Grand Duchy                    approach is, however, entirely contrary to the purpose of
     of Luxembourg from Community financing under the                       the guidance document, which is designed to adjust the
     European Agricultural Guidance and Guarantee Fund                      correction factors by reference to actual circumstances. In
     (EAGGF), Guarantee Section, for the financial years 1996-              addition, the application of a correction factor of 5 % is
     1998 by not definitively charging to the EAGGF the sum                 totally disproportionate in relation to the risk of loss for
     of LUF 56 106 800 by way of expenses relating to arable                the EAGGF, which is in reality non-existent.
     crops;
— order the Commission to pay the costs.                               (1) OJ L 125, 8.6.1995, p. 1.
                                                                       (2) OJ L 94, 28.4.1970, p. 13.
                                                                       (3) Commission Regulation (EC) No 296/96 of 16 February 1996 on
                                                                           data to be forwarded by the Member States and the monthly
Pleas in law and main arguments                                            booking of expenditure financed under the Guarantee Section of
                                                                           the Agricultural Guidance and Guarantee Fund (EAGGF) and
                                                                           repealing Regulation (EEC) No 2776/88 (OJ L 39, 17.2.1996,
— Infringement of Article 1 of Council Regulation (EC) No
                                                                           p. 5).
     1287/95 of 22 May 1995 (1) amending Regulation (EEC)
     No 729/70 (2) on the financing of the common agricultural
     policy: It was only in a notice of 26 May 1998 that the
     Directorate General for Agriculture informed the Grand
     Duchy of Luxembourg of its intention to recommend that


title: Judgment of the Court of 17 October 2014 in Case E-28/13 — LBI hf. v Merrill Lynch International Ltd (Article 30(1) of Directive 2001/24/EC — Winding up of credit institutions — Applicable law — Voidness, voidability or unenforceability of legal acts — Acts governed by the law of another EEA State)

text:
               7.5.2015

               EN

               Official Journal of the European Union

               C 150/10

         JUDGMENT OF THE COURT
   of 17 October 2014
   in Case E-28/13
   LBI hf. v Merrill Lynch International Ltd
   (Article 30(1) of Directive 2001/24/EC — Winding up of credit institutions — Applicable law — Voidness, voidability or unenforceability of legal acts — Acts governed by the law of another EEA State)
   (2015/C 150/10)
   In Case E-28/13, LBI hf. v Merrill Lynch International Ltd – REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice from Reykjavík District Court (Héraðsdómur Reykjavíkur) concerning the interpretation of Article 30(1) of Directive 2001/24/EC of the European Parliament and of the Council on the reorganisation and winding up of credit institutions, the Court, composed of Carl Baudenbacher, President, Per Christiansen (Judge-Rapporteur) and Páll Hreinsson, Judges, gave judgment on 17 October 2014, the operative part of which is as follows:

               1.

               The expression ‘voidness, voidability or unenforceability of legal acts’ in Article 30(1) of Directive 2001/24/EC of the European Parliament and of the Council on the reorganisation and winding up of credit institutions also refers to rescission in bankruptcy law on the basis of avoidance rules, such as those included in Chapter XX of the Icelandic Bankruptcy Act No 21/1991.

               2.

               Under the second indent of Article 30(1) of Directive 2001/24/EC the beneficiary must prove that, whether for substantive or procedural reasons, under the law governing the act detrimental to the creditors as a whole, there is no possibility, or no longer a possibility, to challenge the act in question.
               A concrete assessment of the specific act in question must be undertaken. Consequently, even if the act can in principle be challenged under the law of the EEA State governing it, it is sufficient that the beneficiary proves that the requirements for such a challenge are not fulfilled in the case at hand.
               It must be assessed according to the rules of the home EEA State whether or not the beneficiary has proved that the law applicable to the act does not allow any means of challenge.


title: Case C-71/99: Action brought on 1 March 1999 by the Commission of the European Communities against the Federal Republic of Germany

text:
C 160/2                 EN                   Official Journal of the European Communities                                      5.6.1999
of: G. C. Rodrı́guez Iglesias, President, P. J. G. Kapteyn,             Action brought on 1 March 1999 by the Commission of
J. P. Puissochet, G. Hirsch and P. Jann, Presidents of Chambers,        the European Communities against the Federal Republic
G. F. Mancini, J. C. Moitinho de Almeida, C. Gulmann,                                             of Germany
J. L. Murray, D. A. O. Edward, H. Ragnemalm, L. Sevón
and M. Wathelet (Rapporteur), Judges: G. Cosmas, Advocate
General; R. Grass, Registrar, has made an order on 5 March                                       (Case C-71/99)
1999, the operative part of which is as follows:
1. The appeal is dismissed.                                                                     (1999/C 160/04)
2. Guérin Automobiles EURL is ordered to pay the costs of the
     proceedings.                                                       An action against the Federal Republic of Germany was
                                                                        brought before the Court of Justice of the European Communi-
                                                                        ties on 1 March 1999 by the Commission of the European
(1) OJ C 258, 15.8.1998.                                                Communities, represented by Götz zur Hausen, Legal Advisor
                                                                        in the Legal Service of the European Commission and Paolo
                                                                        Stancanelli, a member of the Legal Service of the European
                                                                        Commission, with an address for service in Luxembourg at the
                                                                        office of Carlos Gómez de la Cruz a member of the Legal
                                                                        Service of the European Commission, Wagner Centre, Kirch-
                                                                        berg, Luxembourg.
Reference for a preliminary ruling by the Landesarbeits-
gericht Düsseldorf, by order of that court of 21 January
1999 in the case of Betriebsrat (Works Council) of                      The applicant claims that the Court should:
bofrost (1) Josef H. Boquoi Deutschland West GmbH & Co
KG v. bofrost (1) Josef H. Boquoi Deutschland West GmbH
                              & Co KG                                   — declare that the Federal Republic of Germany failed to fulfil
                                                                            its obligations under Council Directive 92/43/EEC of
                           (Case C-62/99)                                   21 May 1992 (1) on the conservation of natural habitats
                                                                            and of wild flora and fauna by failing to transmit to the
                                                                            Commission a full list of the sites referred to in the first
                          (1999/C 160/03)                                   subparagraph of Article 4 (1) together with the information
                                                                            on each site set out in the second subparagraph of Article
Reference has been made to the Court of Justice of the                      4 (1), and
European Communities by an order of the Landesarbeitsgericht
Düsseldorf (Düsseldorf Higher Labour Court), by order of that
court of 21 January 1999, which was received at the Court               — order the Federal Republic of Germany to pay the costs.
Registry on 22 February 1999, for a preliminary ruling in the
case of Betriebsrat (Works Council) of bofrost (1) Josef
H. Boquoi Deutschland West GmbH & Co KG v. bofrost (1)
Josef H. Boquoi Deutschland West GmbH & Co KG on the
                                                                        Pleas in law and main arguments
following questions:
(a) Is Article 11 (1) and (2) of Council Directive 94/45/EC of
     22 September 1994 (1) to be interpreted as meaning that            According to the Commission, the first subparagraph of
     the right to information laid down therein exists even             Article 4 (1) of the Directive requires the Member States to
     where it is not (yet) established whether or not there is a        propose in their lists sites which are most suitable for
     controlling undertaking within the meaning of Article 3 of         conservation of the relevant habitats and at the same time
     Directive 94/95/EC in a group of undertakings as defined           geographically representative of the national territory of each
     in Article 2 (1) (b) of Directive 94/45/EC?                        Member State as a whole. The Federal Republic of Germany
                                                                        therefore infringes Community law in proposing a list which
(b) If question (a) is answered in the affirmative:                     omits a whole series of habitat types. It further infringes
                                                                        Community law in not assuring geographical representativity
     Does the right to information in Article 11 (1) and (2) of         for the whole of the territory of the Federal Republic of
     Directive 94/45/EC also include the right of a works               Germany, for instance, because no sites for habitat types
     council to request from the undertaking concerned infor-           within Annex 1 or species within Annex 2 in the Federal
     mation which gives rise to the presumption referred to in          States of Brandenburg, Sachsen, Mecklenburg-Vorpommern,
     Article 3 (2) of Directive 94/45/EC?                               Baden-Württemberg, Nordrhein-Westfalen are mentioned or
                                                                        because the lists hitherto provided are incomplete.
(c) Does Article 11 (1) and (2) of Directive 94/45/EC include
     the right of a works council to request documents from an
     undertaking to clarify and explain such information?               Under Article 4 (1) of the Directive, a complete list was to be
                                                                        transmitted by 10 June 1995. Even taking into account the
(1) OJ L 254, 30.9.1994, p. 64.                                         fact that the formula which Article 4 (1) required to be used
                                                                        was not available at that time, the information could none the
                                                                        less have been entered soon after notification of the formula
                                                                        on 19 December 1996 and transmitted. But at the time of
 ---pagebreak--- 5.6.1999              EN                    Official Journal of the European Communities                                        C 160/3
bringing proceedings, the information sheets are still incom-          The Commission terminated the subsidy contract concluded
plete for 27,1 % of the proposed sites; the information has not        with the defendants as provided for the contract, for failure to
been transmitted with the standard form information sheet              implement the project, and is demanding partial reimburse-
EUR 15 for 4 % of the proposed sites; and no standard                  ment of the advance paid plus interest at the contractual rate.
information sheet with scientific data has been transmitted in
respect of 67,4 % of the proposed sites.
(1) OJ L 206, 22.7.1992, p. 7.
                                                                       Action brought on 3 March 1999 by the Commission of
                                                                        the European Communities against the French Republic
                                                                                (Case C-78/99)
                                                                                (1999/C 160/06)
Action brought on 3 March 1999 by the Commission of
the European Communities against 1. Oder-Plan Architek-                An action against the French Republic was brought before the
tur GmbH, 2. NCC Siab Bau GmbH and 3. Esbensen                         Court of Justice of the European Communtities on 3 March
                     Consulting Engineers                              1999 by the Commission of the European Communities,
                                                                       represented by Christina Tufvesson, Legal Adviser, and Bernard
                                                                       Mongin, of its Legal Service, acting as Agents, with an address
                         (Case C-77/99)                                for service in Luxembourg at the office of Carlos Gómez de la
                                                                       Cruz, Wagner Centre, Kirchberg.
                        (1999/C 160/05)
                                                                       The Commission of the European Communities claims that
                                                                       the Court should:
An action against 1. Oder-Plan Architktur GmbH, 2. NCC Siab
Bau GmbH and 3. Esbensen Consulting Engineers was brought              — declare that, by failing to adopt the laws, regulations and
before the Court of Justice of the European Communities                    administrative measures necessary in order to comply with
on 3 March 1999 by the Commission of the European                          European Parliament and Council Directive 95/26/EC of
Communities, represented by Richard Wainwright, Principal                  29 June 1995 amending Directives 77/780/EEC and
Legal Adviser in the Legal Service of the European Commission              89/646/EEC in the field of credit institutions, Directives
and Karin Schreyer, a national civil servant seconded to the               73/239/EEC and 92/49/EEC in the field of non-life
Legal Service of the Commission, with an address for service               insurance, Directives 79/267/EEC and 92/96/EEC in the
in Luxembourg at the Chambers of Carlos Gómez de la Cruz,                 field of life assurance, Directive 93/22/EEC in the field of
a Member of the Legal Service of the Commission, Wagner                    investment firms and Directive 85/611/EEC in the field of
Centre, Kirchberg, Luxembourg.                                             undertakings for collective investment in transferable
                                                                           securities (Ucits), with a view to reinforcing prudential
                                                                           supervision (1), alternatively by omitting to communicate
The applicant claims that the Court should:                                the measures necessary to comply therewith, the French
                                                                           Republic has failed to fulfil its obligations under that
                                                                           directive,
— order the defendants jointly and severally to pay the
    European Commission 54 510 EUR plus interest in the
                                                                       — order the French Republic to pay the costs.
    amount of 20 798.70 EUR for the period from 1 January
    1993 to 15 January 1999,
                                                                       Pleas in law and main arguments
— order the defendants jointly and severally to pay the
    European Commission interest on the principal sum of
    54 510 EUR at the rate used by the European Monetary               The mandatory nature of the provisions of the third paragraph
    Cooperation Fund plus two per cent, and                            of Article 189 and of the first paragraph of Article 5 of the EC
                                                                       Treaty is such as to oblige Member States to which directives
                                                                       are addressed to adopt the measures necessary in order to
— order the defendants jointly and severally to pay the costs          transpose those directives into their national legal order within
    of the action.                                                     the time-limit prescribed therein. The time-limit in question
                                                                       expired on 18 July 1996 but the French Republic has not
                                                                       adopted the necessary measures.
Pleas in law and main arguments
                                                                       (1) OJ L 168, 18.7.1995, p. 7.
The Court has jurisdiction on the basis of an arbitration clause
concluded in 1992.


title: Case C-144/02: Action brought on 17 April 2002 by the Commission of the European Communities against the Federal Republic of Germany

text:
C 156/6                 EN                    Official Journal of the European Communities                                        29.6.2002
Action brought on 17 April 2002 by the Commission of                     therefore observed, even where the subsidy payment is taxable
the European Communities against the Federal Republic                    as part of the consideration received in return for the sale of
                            of Germany                                   the products (or the provision of the services).
                         (Case C-144/02)                                 The fact that when the products leave the processing undertak-
                                                                         ing, the subsidy is effectively paid as an advance on the total
                                                                         sale price even if there is no actual contract with the recipient
                         (2002/C 156/10)                                 of the products, does not preclude the subsidy from forming
                                                                         part of the consideration. Even though for each individual sale
                                                                         it may be impossible to calculate the exact proportion of
                                                                         the consideration constituted by the subsidy, no practical
An action against the Federal Republic of Germany was                    difficulties are to be expected. The taxable amount is instead
brought before the Court of Justice of the European Communi-             calculated on the basis of the consideration obtained plus the
ties on 17 April 2002 by the Commission of the European                  total subsidies received. In the Commission’s view, the fact
Communities, represented by Enrico Traversa, Legal Adviserl,             that the majority of Member States already tax dried fodder
and Kilian Gross, of its Legal Service, with an address for              subsidies shows that no difficulties arise in practice.
service in Luxembourg at the office of Luis Escobar Guerrero,
of its Legal Service, at Wagner Centre C 254, Kirchberg,
Luxembourg.
                                                                         (1) OJ L 63, 21.3.1995, p. 1.
                                                                         (2) OJ L 145, 13.6.1977, p. 1.
The applicant claims that the Court should:
1.    declare that by failing to make financial aid payable under
      Council Regulation (EC) No 603/95 (1) of 21 February
      1995 on the common organisation of the market in dried
      fodder subject to VAT (value added tax), the Federal
      Republic of Germany has failed to fulfil its obligations
      under Article 11 of the Sixth VAT Directive (Council               Action brought on 25 April 2002 by the Commission of
      Directive 77/388/EEC) (2);                                         the European Communities against the Kingdom of the
                                                                                Netherlands
2.    order the Federal Republic of Germany to pay the costs
      of the proceedings.                                                                        (Case C-149/02)
                                                                                (2002/C 156/11)
Pleas in law and main arguments
                                                                         An action against the Kingdom of the Netherlands was brought
In its reference to ‘subsidies directly linked to the price of such      before the Court of Justice of the European Communities
[taxable] supplies’, the Community legislator intended, by               on 25 April 2002 by the Commission of the European
using such general wording, to include in the basis of                   Communities, represented by H. van Lier and M. Patakia,
assessment for VAT purposes all subsidies directly related to            acting as Agents.
the price of the goods sold or the services provided, i.e.,
subsidies which have a direct effect on the amount of
consideration received by the supplier. There must be a                  The applicant claims that the Court should:
direct, causal relationship, which is precisely quantified or
quantifiable, between those subsidies and the supply of the
goods or services: the subsidy is granted where and to the               1.    Declare that, by failing to bring into force the laws,
extent that those goods (or services) are, in fact, sold on the                regulations and administrative provisions necessary to
market. The subsidy granted per tonne of dried fodder pursuant                 comply with Directive 98/5/EC (1) of the European Parlia-
to Directive 603/95 has such a direct, causal effect on the sale               ment and of the Council of 16 February 1998 to facilitate
price of dried fodder. The processing undertakings can sell the                practice of the profession of lawyer on a permanent
dried fodder at the world market price, which is less than the                 basis in a Member State other than that in which the
price they would have to charge on the basis of their costs,                   qualification was obtained, or in any event by failing to
only because they are in receipt of the relevant subsidies. The                inform the Commission of those provisions, the Kingdom
fact that the level of the subsidy is not adjusted to take account             of the Netherlands has failed to fulfil its obligations under
of fluctuations in the world market price, does not alter the                  that directive;
fact that the subsidy acts as a price supplement. The spirit and
the purpose of Article 11(A)1(a) of the Sixth VAT Directive is           2.    Order the Kingdom of the Netherlands to pay the costs.


title: Case C-386/09: Order of the Court (Seventh Chamber) of 15 September 2010 (reference for a preliminary ruling from the Cour du travail de Bruxelles (Belgium)) — Jhonny Briot v Randstad Interim, Sodexho SA, Council of the European Union (Article 104(3), second subparagraph, of the Rules of Procedure — Directive 2001/23/EC — Transfer of undertakings — Safeguarding of employees’ rights — Non-renewal of a fixed-term contract of employment of a temporary worker)

text:
               18.12.2010

               EN

               Official Journal of the European Union

               C 346/22

         Order of the Court (Seventh Chamber) of 15 September 2010 (reference for a preliminary ruling from the Cour du travail de Bruxelles (Belgium)) — Jhonny Briot v Randstad Interim, Sodexho SA, Council of the European Union
   (Case C-386/09) (1)

   (Article 104(3), second subparagraph, of the Rules of Procedure - Directive 2001/23/EC - Transfer of undertakings - Safeguarding of employees’ rights - Non-renewal of a fixed-term contract of employment of a temporary worker)
   2010/C 346/36
   Language of the case: French

      Referring court

   Cour du travail de Bruxelles

      Parties to the main proceedings

      Applicant: Jhonny Briot

      Defendants: Randstad Interim, Sodexho SA, Council of the European Union

      Re:

   Reference for a preliminary ruling — Cour du travail de Bruxelles — Interpretation of Articles 1(1), 2(1)(a) and (2)(c), 3(1) and 4(1) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ 2001 L 82, p. 16) — Non-renewal of a fixed-term employment contract of a temporary agency worker on account of transfer of an undertaking — Possibility of treating a temporary employment agency or, failing that, a Community institution using the services of temporary agency workers like an ‘employer-transferor’ — Possible exclusion of temporary agency workers from the safeguards afforded by the Directive — Obligation or option on the part of the transferee of maintaining the employment relationship

      Operative part of the order

   In circumstances such as those of the main proceedings, where the fixed-term employment contract of a temporary worker has ended, due to expiry of the agreed term, on a date prior to that of the transfer of the activity to which he was assigned, the non-renewal of this contract because of that transfer does not disregard the prohibition set out in Article 4(1) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses. Thus, that temporary worker must not be regarded as still being available to the user company on the date of the transfer.

      (1)  OJ C 312, 19.12.2009.


title: Case T-449/10: Order of the General Court of 9 November 2011 — ClientEarth and Others v Commission (Access to documents of the institutions — Regulation (EC) No 1049/2001 — Implied refusal of access — Interest in bringing proceedings — Express decision adopted after the action was brought — No need to adjudicate)

text:
               7.1.2012

               EN

               Official Journal of the European Union

               C 6/17

         Order of the General Court of 9 November 2011 — ClientEarth and Others v Commission
   (Case T-449/10) (1)

   (Access to documents of the institutions - Regulation (EC) No 1049/2001 - Implied refusal of access - Interest in bringing proceedings - Express decision adopted after the action was brought - No need to adjudicate)
   2012/C 6/31
   Language of the case: English

      Parties

      Applicants: ClientEarth (London, United Kingdom); European Federation for Transport and Environment (T&E) (Brussels, Belgium); European Environmental Bureau (EEB) (Brussels); and BirdLife International (Brussels) (represented by: S. Hockman QC, and by P. Kirch, lawyer)

      Defendant: European Commission (represented by: K. Herrmann and C. ten Dam, acting as Agents)

      Re:

   Application for annulment of the implied decision of the Commission of 20 July 2010 refusing access to certain documents relating to drafts of a report on the Global Trade and Environmental Impact Study of the Biofuels Mandate of the European Union.

      Operative part of the order

               1.

               There is no need to adjudicate on the action.

               2.

               The European Commission shall bear its own costs and pay those incurred by ClientEarth, the European Federation for Transport and Environment (T&E), the European Environmental Bureau (EEB) and BirdLife International.

      (1)  OJ C 346, 18.12.2010.


title: Case C-10/11: Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 10 January 2011 — WEGO Landwirtschaftliche Schlachtstellen GmbH v Hauptzollamt Hamburg-Jonas

text:
               16.4.2011

               EN

               Official Journal of the European Union

               C 120/4

         Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 10 January 2011 — WEGO Landwirtschaftliche Schlachtstellen GmbH v Hauptzollamt Hamburg-Jonas
   (Case C-10/11)
   2011/C 120/06
   Language of the case: German

      Referring court

   Finanzgericht Hamburg

      Parties to the main proceedings

      Applicant: WEGO Landwirtschaftliche Schlachtstellen GmbH

      Defendant: Hauptzollamt Hamburg-Jonas

      Question referred

   Is the Hauptzollamt (Principal Customs Office) responsible for paying a refund bound by the subsequent amendment made by the customs office of export to the information entered in box 2 of the export declaration or in the T5 control copy? (1)

      (1)  Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p.1).


title: Case T-587/08: Action brought on 31 December 2008 — Fresh Del Monte Produce v Commission

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/66

         Action brought on 31 December 2008 — Fresh Del Monte Produce v Commission
   (Case T-587/08)
   (2009/C 44/113)
   Language of the case: English
   Parties

      Applicant: Fresh Del Monte Produce Inc. (George Town, Cayman Islands) (represented by: B. Meyring, lawyer and E. Verghese, solicitor)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul Articles 1, 2, 3 and 4 of Commission decision C(2008) 5955 final of 15 October 2008 in Case COMP/39.188 — Bananas insofar as it pertains to it;

               —

               alternatively, to substantially reduce the fine imposed on the applicant pursuant to Article 2c of that decision;

               —

               alternatively, to annul Articles 1 and 3 of that decision so far as they pertain to it;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   By means of this application, the applicant seeks annulment pursuant to Article 230 EC of the Commission Decision C(2008) 5955 final of 15 October 2008 (Case COMP/39.188 — Bananas) relating to a proceeding under Article 81(1) EC which held it jointly and severally liable for the conduct of Internationale Fruchtimport Gesellscaft Weichert & Co. The Commission held that Weichert had infringed Article 81 EC by participating in a concerted practice of coordination of quotation prices for bananas imported to the eight Member States of the Northern European region of the Community. Alternatively, it seeks the amendment of Article 2(c) of the Decision in so far as it imposes a fine on the applicant.
   In support of its claims, the applicant puts forward eight pleas, presented in four parts.
   In the first part, the applicant puts forward the pleas in support of its claim for annulment of the decision to hold it jointly and severally liable for the conduct of Weichert.
   First, it submits that the Commission misapplied Article 81(1) EC and Article 23(2)(a) of Regulation No 1/2003 (1) in finding the applicant jointly and severally liable for Weichert's conduct on the basis of a distribution agreement and its indirect interest in Weichert as a limited partner (Kommanditist), neither of which (alone or in combination) gave the applicant decisive influence over Weichert.
   Second, the applicant argues that the Commission infringed Article 253 EC by failing to provide reasons for attributing liability to the applicant, a company that had no direct relationship with Weichert.
   Third, it contends that the Commission violated the applicant's right of defence by refusing to disclose relevant evidence.
   The secondary and alternative pleas are put forward by the applicant in support of its claim of annulment of the contested decision in so far as it relates to both the applicant and Weichert. In this part of its application, the applicant raises fourth and fifth plea.
   The fourth plea relates to a misapplication of Article 81 EC by reason of the fact that the Commission concluded that Weichert had engaged in a concerted practice with the object of restricting competition.
   The fifth plea relates to a breach of the applicant's rights of defence in that it was not granted the right to be heard as a result of a fundamental shift in the Commission's case between the statement of objections and the decision.
   In the third part of its application (also in the alternative), the applicant puts forward the precautionary pleas in support of its claim seeking the reduction of the fine imposed jointly and severally on the applicant and Weichert. This part comprises sixth and seventh pleas.
   By its sixth plea, the applicant argues that the Commission committed a manifest error of assessment in determining the level of the fine by failing to properly assess gravity.
   The seventh plea relates to a violation of Article 23 of Regulation No 1/2003 and of legitimate expectations by the reason of the fact that the Commission failed to take account of Weichert's cooperation in the investigation.
   The fourth part of the application seeks the annulment of Articles 1 and 3 of the decision in respect of the applicant on the basis of the eight pleas stating that those Articles involve a misapplication of Article 81 EC, a violation of Article 7 of Regulation No 1/2003 and a violation of Article 253 EC.

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L 1, p. 1.