title: Judgment of the Court (Fifth Chamber) of 18 October 2001 in Case C-19/00 (reference for a preliminary ruling from the Supreme Court of Ireland): SIAC Construction Ltd v County Council of the County of Mayo (Public works contracts — Award to the most economically advantageous tender — Award criteria)

text:
22.12.2001              EN                        Official Journal of the European Communities                                            C 369/5
      (c)   may not establish in Germany a branch recognised as a            Article 29(1) and (2) of Council Directive 71/305/EEC of 26 July
            construction undertaking if its staff is entrusted solely with   1971 concerning the coordination of procedures for the award of
            work on administration, marketing, planning, supervision         public works contracts, as amended by Council Directive 89/440/EEC
            and/or wages and salaries, but in order to be so recognised,     of 18 July 1989, must be interpreted as permitting an adjudicating
            such an establishment must employ on the German labour           authority which has chosen to award a contract to the most
            market workers who spend more than 50 % of the firm’s            economically advantageous tender to award that contract to the
            total working time on building sites,                            tenderer who has submitted the tender the ultimate cost of which, in
                                                                             the professional opinion of an expert, is likely to be the lowest,
      the Federal Republic of Germany has failed to fulfil its               provided that the equal treatment of tenderers has been ensured,
      obligations under Articles 52 and 59 of the EC Treaty (now,            which presupposes that the transparency and objectivity of the
      after amendment, Articles 43 EC and 49 EC);                            procedure have been guaranteed and in particular that:
2.    Orders the Federal Republic of Germany to pay the costs.               —     this award criterion was clearly stated in the contract notice or
                                                                                contract documents; and
(1) OJ C 63 of 4.3.2000.                                                     —     the professional opinion is based in all essential points on
                                                                                objective factors regarded in good professional practice as
                                                                                relevant and appropriate to the assessment made.
                                                                             (1) OJ C 102 of 8.4.2000.
                  JUDGMENT OF THE COURT
                          (Fifth Chamber)
                                                                                JUDGMENT OF THE COURT
                       of 18 October 2001
                                                                                (Fourth Chamber)
in Case C-19/00 (reference for a preliminary ruling from
the Supreme Court of Ireland): SIAC Construction Ltd v
                                                                                of 11 October 2001
          County Council of the County of Mayo (1)
                                                                             in Case C-254/00: Commission of the European Communi-
(Public works contracts — Award to the most economically                                  ties v Kingdom of the Netherlands (1)
             advantageous tender — Award criteria)
                                                                             (Failure by a Member State to fulfil obligations — Failure to
                          (2001/C 369/07)                                    implement Directive 95/47/EC within the prescribed period
                                                                             — Use of standards for the transmission of television
                                                                                signals)
                    (Language of the case: English)
                                                                                (2001/C 369/08)
In Case C-19/00: reference to the Court under Article 234 EC                                     (Language of the case: Dutch)
from the Supreme Court of Ireland for a preliminary ruling in
the proceedings pending before that court between SIAC
Construction Ltd and County Council of the County of Mayo                    (Provisional translation; the definitive translation will be published
— on the interpretation of Article 29 of Council Directive                                      in the European Court Reports)
71/305/EEC of 26 July 1971 concerning the coordination of
procedures for the award of public works contracts (OJ,
English Special Edition 1971 (II), p. 682), as amended by
Council Directive 89/440/EEC of 18 July 1989 (OJ 1989                        In Case C-254/00: Commission of the European Communities
L 210, p. 1) — the Court (Fifth Chamber), composed of:                       (Agent: H. van Lier) v Kingdom of the Netherlands (Agents:
P. Jann (Rapporteur), President of the Chamber, A. La Pergola,               M.A Fierstra, and subsequently by J. van Bakel) — application
L. Sevón, M. Wathelet and C.W.A. Timmermans, Judges;                        for a declaration that by failing to bring into force or to
F.G. Jacobs, Advocate General; H.A. Rühl, Principal Adminis-                 communicate all of the laws, regulations and administrative
trator, for the Registrar, has given a judgment on 18 October                provisions necessary to comply with Directive 95/47/EC of
2001, in which it has ruled:                                                 the European Parliament and of the Council of 24 October


title: Case C-339/00: Action brought on 15 September 2000 by Ireland against the Commission of the European Communities

text:
C 335/34                EN                    Official Journal of the European Communities                                       25.11.2000
            the persons who acted were at fault (intention or            Action brought on 15 September 2000 by Ireland against
            negligence). The mere finding of objectively illegal                the Commission of the European Communities
            acts by individual employees in conjunction with a
            statement, concerning other employees, that the
            appellant acted intentionally in that regard, does not                                (Case C-339/00)
            satisfy the requirements of the fault principle, which
            must be observed also in EC Competition Law.
                                                                                (2000/C 335/59)
—    Infringements of procedural principles:                             An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of Justice of the European
                                                                         Communities on 15 September 2000 by Ireland, represented
     —      The Court based its decision on facts that differed          by Mr David J. O’Hagan, Chief State Solicitor, acting as agent,
            from those which were the subject of the Com-                assisted by Mr Rory Brady, Senior Counsel and Mr Anthony
            mission’s decision: In its decision the Commission           M. Collins, Barrister at Law, of the Bar of Ireland, with an
            grounded the infringement of Article 81 EC upon a            address for service in Luxembourg at the Embassy of Ireland,
            bundle of measures which it characterised as a single        28, route d’Arlon.
            ‘infringement’. The Court did not confirm the facts
            relating to ‘2. Margins policy’ and to ‘6. Termination
            of Contracts’, nor, therefore, the single ‘overall           The Applicant claims that the Court should:
            strategy’ which the Commission alleged to consist
            of 7 elements. Even if, in the Court’s view, the
            remaining individual measures, even viewed in iso-           a)    annul the decision contained in Commission Decision of
            lation, infringed Article 81(1) EC, it was not entitled            5 July 2000 (1) notified under document number C(2000)
            to substitute a different set of fact and then to                  1847 to exclude from Community financing
            assume that the Commission would have adopted                      EUR 4 844 345,35 in afforestation aid paid by Ireland
            the decision in that case too.                                     under the Guarantee Section of the European Agricultural
                                                                               Guidance and Guarantee Fund (EAGGF) for the years
                                                                               1997 and 1998;
     —      The Court failed to observe the principle of the right
            to a fair hearing, as it assessed, to the detriment of       b)    order the Commission to pay the costs of these proceed-
            the appellant, consumer complaints on which it had                 ings.
            not been able to express its views during the
            administrative procedure.
                                                                         Pleas in law and main arguments
     —      The Commission’s decision contains an inadequate
            statement of reasons and is therefore unlawful.
                                                                         The decision impugned purports to have legal basis in
                                                                         Council Regulation 729/70 (2). That regulation is incapable of
     —      The Court did not fulfil its duty to state reasons in        providing a legal basis because, at the date of adoption of the
            regard to the fine set by it.                                decision (5 July 2000), it had been repealed in its entirety by
                                                                         Article 16.1 of Council Regulation 1258/1999 of 17 May
                                                                         1999 (3) which entered into force on 3 July 1999. In the
                                                                         absence of a legal basis upon which it could have been
     —      The premature disclosure of the proposed decision            adopted, it is submitted that the Commission lacked the power
            by the Commissioner responsible for competition              to make the decision.
            matters renders the decision unlawful in any event.
            An undertaking in the appellant’s situation is never
            in a position — as the Court of First Instance               Should the Commission be able to satisfy the Court that the
            demands — to be able to prove that the decision
                                                                         decision challenged in these proceedings is lawful, Ireland
            would have been different if the Commission had
                                                                         submits that it ought to be annulled by reference to any, or
            acted in accordance with the rules.                          indeed to all, of the following grounds:
                                                                         a)    Coillte Teoranta is a ‘private-law, natural or legal person’
(1) Not yet published in the ECR.                                              for the purposes of Article 2(2)(b) of Regulation (EEC)
                                                                               No 2080/92 (4), and is therefore entitled to receive aid;
                                                                         b)    Coillte Teoranta is not a ‘public authority’ for the purposes
                                                                               of Regulation (EEC) No 2080/92. It is a body incorporated
                                                                               under the Companies Acts and is therefore a ‘private-law
                                                                               legal person’, albeit one owned by the State or its agents;
 ---pagebreak--- 25.11.2000              EN                      Official Journal of the European Communities                                      C 335/35
c)     failure to comply with the duties of loyal co-operation,            Pleas in law and main arguments
       legal certainty and good administration;
                                                                           —     Error of law, in that the Court of First Instance exceeded
d)     breach of legitimate expectations.                                        the limits of its power of review and in so doing gave an
                                                                                incorrect and unduly restrictive interpretation of the
                                                                                second paragraph of Article 17 of the Staff Regulations
(1) Commission Decision of 5 July 2000 excluding from Community                  of Officials: the fact that an official does not act in a
    financing certain expenditure incurred by the Member States under
                                                                                ‘managerial’ capacity is clearly not decisive and is not to
    the Guarantee Section of the European Agricultural Guidance and
    Guarantee Fund (EAGGF) (OJ L 180, 19.07.2000, p. 49).                        be found as a condition in the second paragraph of
(2) Regulation (EEC) No 729/70 of the Council of 21 April 1970 on                Article 17 of the Staff Regulations. Likewise, the insti-
    the financing of the common agricultural policy [OJ L 94,                    tution must be in a position to control the points of view
    28.04.70, p. 13 (SE SERI 70(1) p. 218)].                                     adopted by its officials, especially where they conflict
(3) on the financing of the common agricultural policy (OJ L 160,                with those expressed at the time, or where the official
    26.06.1999, p. 103).                                                         expresses his views on matters in respect of which it is
(4) Council Regulation (EEC) No 2080/92 of 30 June 1992 instituting              the Commission’s express intention to adopt a ‘neutral’
    a Community aid scheme for forestry measures in agriculture (OJ              policy. Last, it is difficult to see how a point of view
    L 215, 30.07.92, p. 96).                                                     addressed to an audience of ‘specialists’ is by nature less
                                                                                damaging to the institution than if it were expressed in
                                                                                other circumstances.
                                                                           —     Lack of reasoning.
Appeal brought on 15 September 2000 by the Com-
mission of the European Communities against the judg-
ment delivered on 14 July 2000 by the Fourth Chamber
of the Court of First Instance of the European Communi-
ties in Case T-82/99 between Michael Cwik and the
          Commission of the European Communities
                                                                           Action brought on 18 September 2000 by the Com-
                         (Case C-340/00 P)                                 mission of the European Communities against the French
                                                                                Republic
                          (2000/C 335/60)
                                                                                (Case C-343/00)
An appeal against the judgment delivered on 14 July 2000 by
the Fourth Chamber of the Court of First Instance of the
                                                                                (2000/C 335/61)
European Communities in Case T-82/99 between Michael
Cwik and the Commission of the European Communities
was brought before the Court of Justice of the European                    An action against the French Republic was brought before the
Communities on 15 September 2000 by the Commission of                      Court of Justice of the European Communities on 18 Septem-
the European Communities, represented by J. Currall, Legal                 ber 2000 by the Commission of the European Communities,
Adviser, acting as Agent, and Denis Waelbroeck, of the Brussels            represented by Gérard Berscheid, of its Legal Service, acting as
Bar, with an address for service in Luxembourg at the office of            Agent, with an address for service in Luxembourg at the office
C. Gómez de la Cruz, of the Legal Service, Wagner Centre,                 of Carlos Gómez de la Cruz, also of the Commission’s Legal
Kirchberg.                                                                 Service, Wagner Centre, Kirchberg.
The appellant claims that the Court should:
                                                                           The applicant claims that the Court should:
—      declare the appeal admissible and well founded;
                                                                           —     Declare that, by failing to bring into force, within the
—      set aside the judgment delivered by the Fourth Chamber                    prescribed period, the laws, regulations and administrat-
       of the Court of First Instance on 14 July 2000 in Case                    ive provisions needed in order to comply with Com-
       T-82/99 Michael Cwik v European Commission;                               mission Directive 98/87/EC of 13 November 1998
                                                                                amending Council Directive 79/373/EEC on the market-
—      accordingly, dismiss the applicant’s action in that case or,              ing of compound feedingstuffs (1), the French Republic
       in the alternative, refer the case back to the Court of First             has failed to fulfil its obligations under Article 2 of
       Instance;                                                                 Directive 98/87/EC;
—      order the applicant to bear his own costs.                          —     Order the French Republic to pay the costs.


title: Judgment of the Court of First Instance of 25 June 2002 in Case T-311/00: British American Tobacco (Investments) Ltd v Commission of the European Communities (Decision 94/90/ECSC, EC, Euratom — Public access to Commission documents — Whether documents exist — No need to proceed to judgment — Costs caused unreasonably or vexatiously)

text:
C 202/22               EN                      Official Journal of the European Communities                                         24.8.2002
    JUDGMENT OF THE COURT OF FIRST INSTANCE                               the European Communities (Agents: R. Tricot and R. Wain-
                                                                          wright): Application for annulment of the Commission’s
                         of 13 June 2002                                  decision of 29 June 2000 (C (2000) 1684 final) to the effect
                                                                          that repayment to the applicant of import duties is not justified,
in Case T-232/00: Chef Revival USA Inc. v Office for                      the Court of First Instance (Fourth Chamber), composed of:
Harmonisation in the Internal Market (Trade Marks and                     M. Vilaras, President, V. Tiili and P. Mengozzi, Judges; B. Pastor,
                       Designs)(OHIM) (1)                                 Principal Administrator, for the Registrar, has given a judgment
                                                                          on 4 July 2002, in which it:
(Community trade mark — Opposition proceedings —
Failure to produce evidence in the language of the opposition
 proceedings — Rule 18(2) of Regulation (EC) No 2868/95)                  1.    Dismisses the application;
                         (2002/C 202/31)                                  2.    Orders the applicant to pay the defendant’s costs in addition to
                                                                                its own.
                   (Language of the case: English)
                                                                          (1) OJ C 335 of 25.11.2000.
In Case T-232/00, Chef Revival USA Inc., established in Lodi,
New Jersey (United States), represented by N. Jenkins, Solicitor,
with an address for service in Luxembourg, v Office for
Harmonisation in the Internal Market (Trade Marks and
Designs)(OHIM) (Agent: A. von Mühlendahl), defendant, the
other party to the proceedings before the Board of Appeal of
the Office for Harmonisation in the Internal Market (Trade
Marks and Designs) being Joachı́n Massagué Marı́n, of Sabadell
(Spain): Action brought against the decision of the Third Board               JUDGMENT OF THE COURT OF FIRST INSTANCE
of Appeal of the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) of 26 June 2000 (Case
R 181/1999-3), as corrected by corrigendum of 6 July 2000,                                         of 25 June 2002
the Court of First Instance (Fourth Chamber), composed of:
M. Vilaras, President, V. Tiili and P. Mengozzi, Judges; J. Palacio       in Case T-311/00: British American Tobacco (Invest-
González, Administrator, for the Registrar, has given a judg-            ments) Ltd v Commission of the European Communi-
ment on 13 June 2002, in which it:                                                                       ties (1)
1.    Annuls the decision of the Third Board of Appeal of the Office
      for Harmonisation in the Internal Market (Trade Marks and           (Decision 94/90/ECSC, EC, Euratom — Public access to
      Designs) of 26 June 2000 (Case R 181/1999-3), as rectified          Commission documents — Whether documents exist — No
      by corrigendum of 6 July 2000;                                      need to proceed to judgment — Costs caused unreasonably
                                                                                or vexatiously)
2.    Orders the Office to pay the costs.
                                                                                (2002/C 202/33)
(1) OJ C 316 of 4.11.2000.
                                                                                (Language of the case: English)
    JUDGMENT OF THE COURT OF FIRST INSTANCE                               In Case T-311/00, British American Tobacco (Investments)
                                                                          Ltd, established in London (United Kingdom), represented
                           of 4 July 2002                                 by S. Crosby, Solicitor, v Commission of the European
                                                                          Communities (Agents: U. Wölker, X. Lewis and M. Shotter):
in Case T-239/00: SCI UK Ltd v Commission of the                          Application for annulment of the Commission’s decision of
                   European Communities (1)                               7 September 2000 refusing to grant access to certain docu-
                                                                          ments concerning preparatory work relating to the proposal
(Repayment of import duties — Article 13 of Regulation                    for a directive of the European Parliament and of the Council
     (EEC) No 1430/79 — Meaning of ‘special situation’)                   (COM(1999) 594 final), presented by the Commission on
                                                                          7 January 2000, on the approximation of the laws, regulations
                         (2002/C 202/32)                                  and administrative provisions of the Member States concerning
                                                                          the manufacture, presentation and sale of tobacco products
                   (Language of the case: English)                        (OJ 2000 C 150 E, p. 43), the Court of First Instance (First
                                                                          Chamber), composed of: B. Vesterdorf, President, M. Vilaras
                                                                          and N.J. Forwood, Judges; D. Christensen, Administrator, for
In Case T-239/00, SCI UK Ltd, established in Irvine (United               the Registrar, has given a judgment on 25 June 2002, in which
Kingdom), represented by L. Allen, Barrister, v Commission of             it:
 ---pagebreak--- 24.8.2002               EN                       Official Journal of the European Communities                                            C 202/23
1.    Dismisses the action in so far as it relates to the category of       2.   Annuls the decision of the Second Board of Appeal of the Office
      documents constituted by the minutes of the meetings of the                for Harmonisation in the Internal Market (Trade Marks and
      cancer experts committee assessing the international scientific            Designs) of 2 August 2000 (Case R 312/1999-2) in so far
      research;                                                                  as the Board dismissed the appeal before it as regards the
                                                                                following categories of services:
2.    Finds that there is no need to proceed to judgment on the
      remainder of the case;
                                                                                —     ‘Services relating to a database’ within Class 38;
3.    Orders the Commission in addition to bearing its own costs, to
      pay those of the applicant, save for costs relating to the request
      for the oral procedure to be re-opened. The Commission is also             —     ‘Production and reproduction of data, speech, text, sound
      ordered to pay the costs connected with the summoning of                         and image recordings on video and/or audio cassettes,
      witnesses.                                                                       tapes and discs (including CD-ROMs and CD-i’s) and of
                                                                                video games (computer games); demonstration and rental
                                                                                of video and/or audio cassettes, tapes and discs (including
(1) OJ C 355 of 9.12.2000.                                                             CD-ROMs and CD-i’s) and of video games (computer
                                                                                games); rental of television receiving apparatus and
                                                                                decoders; education, providing of training, entertainment;
                                                                                sporting and cultural activities; conducting competitions
                                                                                in the fields of training, teaching, entertainment and
                                                                                sports; distance learning courses; publishing books, per-
                                                                                iodicals and other printed matter and associated electronic
                                                                                media (including CD-ROMs and CD-i’s); conducting
                                                                                concert, theatre and entertainment events and sporting
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                            competitions; production of films and videos and radio
                                                                                and television programmes of a training, teaching and
                                                                                entertaining nature, including such production for children
                           of 2 July 2002                                              and young people; production, reproduction, showing and
                                                                                rental of sound and image recordings on video and/or
in Case T-323/00: SAT.1 SatellitenFernsehen GmbH                                       audio cassettes, tapes and discs; theatrical performances
v Office for Harmonisation in the Internal Market (Trade                               and orchestra services’ within Class 41;
                 Marks and Designs) (OHIM) (1)
                                                                                —     ‘Issuing, negotiating, rental and other exploitation of
(Community trade mark — ‘SAT. 2’ — Absolute grounds                                    rights to films, television and video productions and other
for refusal — Article 7(1)(b) and (c) of Regulation (EC)                               image and sound programmes; copyright and industrial
                  No 40/94 — Equal treatment)                                          property rights exploitation for others; exploitation of film
                                                                                and television ancillary rights in the field of merchandis-
                          (2002/C 202/34)                                              ing; software development, in particular in the fields of
                                                                                multimedia, interactive television and Pay-TV; operation
                                                                                of networks for the transfer of messages, images, text,
                    (Language of the case: German)                                     speech and data; technical consultancy in the field of
                                                                                multimedia, interactive television and Pay-TV (included
                                                                                in class 42); computer programming, including video
                                                                                and computer games; arranging and allocating of user
In Case T-323/00, SAT.1 SatellitenFernsehen GmbH, estab-                               passwords for users of various communication networks’
lished in Mainz (Germany), represented by R. Schneider,                                within Class 42;
lawyer, v Office for Harmonisation in the Internal Market
(Trade Marks and Designs) (OHIM) (Agents: A. von Mühlendahl
and C. Røhl Søberg): Action brought against the decision of                 3.   Dismisses the remainder of the application;
the Second Board of Appeal of the Office for Harmonisation
in the Internal Market (Trade Marks and Designs) of 2 August
2000 (Case R 312/1999-2), the Court of First Instance (Second               4.   Orders the parties to bear their own costs.
Chamber), composed of: R.M. Moura Ramos, President, J. Pir-
rung and A.W.H. Meij, Judges; J. Plingers, Administrator, for
the Registrar, has given a judgment on 2 July 2002, in which
it:
                                                                            (1) OJ C 4 of 6.1.2001.
1.    Annuls the decision of the Second Board of Appeal of the Office
      for Harmonisation in the Internal Market (Trade Marks and
      Designs) of 2 August 2000 (Case R 312/1999-2) in so far
      as the Board failed to rule on the appeal before it as regards the
      services within Class 35;


title: Case C-177/01: Action brought on 24 April 2001 by the Commission of the European Communities against the French Republic

text:
16.6.2001              EN                      Official Journal of the European Communities                                  C 173/31
Pleas in law and main arguments                                           —     Order the French Republic to pay the costs.
The provisions of the Grand-Ducal Regulation of 24 February
1988, put forward by the Grand Duchy as its disposal plan,                Pleas in law and main arguments
cannot be considered fully to meet the requirements of
Article 11(1) of the directive in so far as concerns the                  Decree No 2001/63 of 18 January 2001 which the French
equipment included in the inventory provided for by Article 4             authorities forwarded to the Commission provides for the
thereof. Member States are to determine, on the basis of the              drawing-up of a national inventory of equipment with a PCB
inventory provided for under Article 4(1) of the directive, the           volume of more than 5 dm3 which is to be the basis for a
dates on which it is possible, in view of the quantities of spent         national plan for decontamination or disposal of inventoried
PCB and of the number of contaminated pieces of equipment                 equipment which must subsequently be adopted in accordance
involved and of the available processing capacity, to require             with the procedure laid down in Article 7(5) et seq of the
that the elimination and decontamination required by the                  aforementioned decree. The Order of 13 February 2001 has as
directive be carried out; the Luxembourg authorities, however,            its sole purpose to request those who hold equipment contain-
have taken no steps to satisfy themselves that what they                  ing PCB to make a declaration before the Prefect. The
termed the ‘filière de décontamination ou d’élimination’ is able          Commission therefore remains of the view, first, that the
to process the equipment and PCB involved within the period               implementation of a procedure for drawing up a national
prescribed since, other than the laying down of a final deadline          inventory does not remedy the complaint regarding failure to
of 31 December 2010, no indication is given as to plans                   communicate to it a summary of inventories pursuant to
regarding the decontamination and elimination of spent                    Article 4(1) of the directive.
equipment and PCB in such a case.
                                                                          Secondly, the adoption of that decree is not sufficient to
                                                                          remedy the complaint that that Member State had not drawn
(1) OJ 1996 L 243, p. 31.                                                 up either a plan for decontamination and/or disposal of
                                                                          contaminated equipment or plans for the collection and
                                                                          subsequent disposal of equipment not subject to inventory.
                                                                          (1) OJ 1996 L 243, p. 31.
Action brought on 24 April 2001 by the Commission of
 the European Communities against the French Republic
                         (Case C-177/01)
                                                                          Reference for a preliminary ruling from the College van
                         (2001/C 173/53)                                  Beroep voor het bedrijfsleven, by judgment of that court
                                                                          of 26 April 2001 in the case of (1) H. Jippes, (2)
                                                                          Afdeling Groningen van de Nederlandse Vereniging tot
An action against the French Republic was brought before the              Bescherming van Dieren and (3) Afdeling Assen en
Court of Justice of the European Communities on 24 April                  omstreken van de Nederlandse Vereniging tot Bescherm-
2001 by the Commission of the European Communities,                       ing van Dieren against the Minister van Landbouw,
represented by H. Støvlbæk and J. Adda, acting as Agents, with                               Natuurbeheer en Visserij
an address for service in Luxembourg.
                                                                                (Case C-189/01)
The applicant claims that the Court should:
                                                                                (2001/C 173/54)
—     Declare that, by failing to send it a summary of inventories
      compiled of equipment with PCB volumes of more than
      5 dm3, plans for the decontamination and/or disposal of             Reference has been made to the Court of Justice of the
      inventoried equipment and the PCBs contained therein                European Communities by judgment of the College van Beroep
      and plans for the separate removal and collection of                voor het bedrijfsleven (Administrative Court for Trade and
      equipment containing PCBs which is not subject to                   Industry) of 26 April 2001, received at the Court Registry on
      inventory in accordance with Article 4(1) and as referred           27 April 2001, for a preliminary ruling in the case of
      to in Article 6(3) of Council Directive 96/59/EC (1) of             (1) H. Jippes, (2) Afdeling Groningen van de Nederlandse
      16 September 1996 on the disposal of polychlorinated                Vereniging tot Bescherming van Dieren and (3) Afdeling Assen
      biphenyls and polychlorinated terphenyls (PCB/PCT), the             en omstreken van de Nederlandse Vereniging tot Bescherming
      French Republic has failed to fulfil its obligations under          van Dieren against the Minister van Landbouw, Natuurbeheer
      Articles 4 and 11 of the abovementioned directive;                  en Visserij on the following questions:


title: Case T-124/99: Action brought on 25 May 1999 by Autosalone Ispra dei F.lli Rossi s.n.c against the Commission of the European Communities

text:
7.8.1999               EN                     Official Journal of the European Communities                                         C 226/39
Action brought on 21 May 1999 by JT’s Corporation                        The contested decision refuses disclosure of documents falling
Limited against the Commission of the European Com-                      within the first and pan of the fourth categories on the ground
                            munities                                     that they were covered by the exception regarding the
                                                                         protection of the public interest, as defined in the annex to
                                                                         Decision 94/90. As regards the findings and information
                        (Case T-123/99)                                  obtained through the enquiries carried out in Bangladesh, on
                                                                         the basis of Regulation No 1468/81 (1), the contested decision
                        (1999/C 226/69)                                  invokes grounds of confidentiality. Finally, in relation to the
                                                                         second and part of the fourth categories of the requested
                                                                         material, the contested decision stases that Decision 94/9C
                                                                         requires application to be made to the Government of
                   (Language of the case: English)                       Bangladesh on the basis that it was the author of the documents
                                                                         in question.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               The applicant submits that:
European Communities on 21 May 1999 by JT’s Corporation
Limited, represented by Malachy Cornwell-Kelly, with an
address for service in Luxembourg at Wilson Associates, 3                — none of the arguments advanced by the Commission can
boulevard Royal.                                                              be considered as justified in the light of the Decision 94/90
                                                                              and Regulation No 1468/81, and
The applicant claims that the Court should:
                                                                         — the contested decision does not state with sufficient
                                                                              particularity the reasons upon which it is based, as required
— annul the Commission Decision of 11 March 1999;                             by Article 190 of the EC Treaty.
— order the Commission to pay the costs.
                                                                         (1) Council Regulation (EEC) No 1468/81, of 19 May 1981,         on
                                                                             mutual assistance between the administrative authorities of the
Pleas in law and main arguments                                              Member States and cooperation between the latter and        the
                                                                             Commission to ensure the correct application of the law      on
                                                                             customs oragricultural matters. OJ L 144 of 2.6.1981, p. 1.
The applicant in the present case challenges the refusal of the
Commission to grant it access to certain documents concerning
demands for duty relating to imports of goods for which total
relief from duty was claimed and accorded upon presentation
of GSP Forms A certifying that the goods imported originated
in Bangladesh. It stated for this purpose that the VAT and
Duties Tribunal, before which an appeal had been brought
against the decision of the national authorities refusing
remission of the duty claimed pursuant to Article 239 of the
Community Customs Code, has no jurisdiction to compel the
                                                                         Action brought on 25 May 1999 by Autosalone Ispra dei
production of any documents by the Commission. The
                                                                         F.lli Rossi s.n.c against the Commission of the European
documents of which disclosure has been demanded are
                                                                                Communities
intended to be used as an evidence before that tribunal.
                                                                                (Case T-124/99)
The documents in question can be divided into the following
categories:
                                                                                (1999/C 226/70)
— EU mission reports and annexes;
— responses of the Government of Bangladesh or its agencies                                  (Language of the case: Italian)
     to the report;
                                                                         An action against the Commission of the European Communi-
— Commission decisions with respect to the mission reports;              ties was brought before the Court of First Instance of the
                                                                         European Communities on 25 May 1999 by Autosalone Ispra
— Correspondence between the Commission and the Govern-                  dei F.lli Rossi s.n.c., represented by Francandrea Venuti of the
     ment of Bangladesk with regard to cancellation of the GSP           Busto Arsizio Bar, with an address for service in Luxembourg at
     Forms A; and                                                        the Chambers of Arsene Kronshagen, 22, Rue Marie-Adelaïde:
— reports or summaries compiled or received by the Com-                  The applicant claims that the Court should:
     mission with regard to the operation and conduct of the
     GSP scheme relating to textile goods from Bangladesh
     between 1991 and 1996.                                              — establish and declare that the EAEC is liable;
 ---pagebreak--- C 226/40               EN                    Official Journal of the European Communities                                      7.8.1999
— therefore order the EAEC, represented by the Commission               2. pursuant to Article 176 of the EC Treaty (Article 233 of
    of the European Communities, to pay to the applicant,                    the Amsterdam Treaty), require the Commission to comply
    Autosalone Ispra dei F.lli Rossi s.n.c., the sum of                      with the Court’s judgment by declaring a further DM 4.875
    LIT 1 245 000 000, together with monetary revaluation                    million of the planned aid compatible with the common
    and interest from the due date until actual payment, or                  market;
    such other sum as may be ordered by the court;
                                                                        3. order the Commission to pay the costs.
— order the defendant to pay the costs.
                                                                        Pleas in law and main arguments
Pleas in law and main arguments
The applicant’s complaint concerns the damage caused by                 The applicant is a Berlin (Spandau)-based manufacturer of
flooding on it property as a result of the overflowing of a             printing machines and subsidiary of Koenig & Bauer AG. In
stretch of drain which it was the responsibility of the EAEC            cooperation with other group companies, i produces individual
                                                                        assemblies for the various production plants in the group.
Joint Research Centre (JRC) to manage and maintain.
                                                                        Severe economic problems in 1996 threatened the company
                                                                        with closure in 1997, but this was averted by aid from the
                                                                        Land Berlin and a restructuring plan.
According to the applicant, the JRC has the authority and the
duty to oversee the structures connected with the operation of
the whole Centre, including the drain in question. Conse-
quently, the JRC has acted negligently, imprudently and                 In the contested decision, the Commission held that the
incompetently in not anticipating the incident.                         State aid planned for the plaintiff of DM 9.31 million was
                                                                        compatible with the common market only as to DM
                                                                        4.435 million thereof, and that the excess over that figure
                                                                        could not be granted.
                                                                        The applicant challenges the prohibition of the additional
                                                                        amount, arguing that it relates to development costs which in
                                                                        the Commission’s view had been incurred before notification
                                                                        in January 1998 and allegedly benefited not the applicant but
                                                                        its parent company.
Action brought on 25 May 1999 by Graphischer Maschi-
nenbau GmbH against the Commission of the European
                           Communities                                  The applicant maintains that the disallowed development costs
                                                                        are a central component of the restructuring plan, and that aid
                         (Case T-126/99)                                of that amount is necessary for the restructuring.
                         (1999/C 226/71)                                It argues that the Commission has:
                                                                        — wrongly based its decision on the timing of a part of the
                  (Language of the case: German)                             development costs;
An action against the Commission of the European Communi-               — put an inappropriate time-limit on the development costs;
ties was brought before the Court of First Instance of the
European Communities on 25 May 1999 by Graphischei
Maschinenbau, whose registered office is in Berlin, represented         — insufficiently examined the facts;
by Albrecht Bach Rechtsanwalt, Stuttgart, with an address for
service in Luxembourg at the Chambers of Dupong & Dupong,
4-6 Rue de la Boucherie.                                                — denied the applicant a proper hearing;
                                                                        — insufficiently stated its reasons for the contested decision;
The applicant claims that the Court should:                                  and
1. pursuant to the first paragraph of Article 174 of the EC             — infringed Article 92(3)(c) of the EC Treaty in the exercise
    Treaty (Article 230(4) of the Amsterdam Treaty), annul the               of its powers.
    second sentence of Article 1 of Commission Decision
    K(1999) 327 endg. of 3 February 1999, prohibiting the
    planned grant of state aid by the Federal Republic of
    Germany (No C 54/98) to Graphischer Maschinenbau.
    Berlin. in so far as it exceeded DM 4.435 million;


title: Judgment of the Court (Sixth Chamber) of 27 February 2003 in Case C-415/01: Commission of the European Communities v Kingdom of Belgium (Failure by a Member State to fulfil its obligations — Conservation of wild birds — Special protection areas)

text:
C 101/8                    EN                          Official Journal of the European Union                                               26.4.2003
General; M.-F. Contet, Principal Administrator, for the Regis-                 (Agent: C. Pochet): Application for a declaration that, in so far
trar, has given a judgment on 27 February 2003, in which it                    as the Région flamande (Flemish Region) has failed to transpose
has ruled:                                                                     Article 4(1) and (2) of and Annex I to Council Directive 79/
                                                                               409/EEC of 2 April 1979 on the conservation of wild birds
                                                                               (OJ 1979 L 103, p. 1), to demarcate special protection areas
1.     Article 2(1) of Council Directive 76/207/EEC of 9 February              within its territory capable of being relied upon as against
       1976 on the implementation of the principle of equal treatment          third parties, and to adopt the measures necessary to ensure
       for men and women as regards access to employment, vocational           that the classification of a site as a special protection area
       training and promotion, and working conditions is to be                 automatically and simultaneously entails the application of
       interpreted as precluding a requirement that an employee who,           a system of protection and conservation complying with
       with the consent of her employer, wishes to return to work              Community law, the Kingdom of Belgium has failed to fulfil
       before the end of her parental leave must inform her employer           its obligations under Article 4(1) and (2) in conjunction with
       that she is pregnant in the event that, because of certain              Article 4(4), as partially amended, of Directive 79/409 in
       legislative prohibitions, she will be unable to carry out all of her    accordance with Article 7 of Council Directive 92/43/EEC of
       duties.                                                                 21 May 1992 on the conservation of natural habitats and of
                                                                               wild fauna and flora (OJ 1992 L 206, p. 7), by Article 6(2) to
                                                                               (4) of the latter directive, the Court (Sixth Chamber), composed
2.     Article 2(1) of Directive 76/207 is to be interpreted as
                                                                               of: J.-P. Puissochet, President of the Chamber, R. Schintgen,
       precluding an employer from contesting under national law the
                                                                               C. Gulmann (Rapporteur), F. Macken and J.N. Cunha Rodri-
       consent it gave to the reinstatement of an employee to return
                                                                               gues, Judges; P. Léger, Advocate General; R. Grass, Registrar,
       before the end of her parental leave on the grounds that it was
       in error as to her being pregnant.                                      has given a judgment on 27 February 2003, in which it:
( 1) OJ C 303 of 27.10.2001.
                                                                               1.    Declares that, in so far as the Région flamande has failed to
                                                                                transpose Article 4(1) and (2) of and Annex I to Council
                                                                                Directive 79/409/EEC of 2 April 1979 on the conservation of
                                                                                wild birds, to demarcate special protection areas within its
                                                                                territory capable of being relied upon as against third parties,
                                                                                and to adopt the measures necessary to ensure that the
                                                                                classification of a site as a special protection area automatically
                    JUDGMENT OF THE COURT                                            and simultaneously entails the application of a system of
                                                                                protection and conservation complying with Community law,
                                                                                the Kingdom of Belgium has failed to fulfil its obligations
                            (Sixth Chamber)                                          under Article 4(1) and (2) of Directive 79/409 and the first
                                                                                sentence of Article 4(4) thereof, as amended, in accordance with
                                                                                Article 7 of Council Directive 92/43/EEC of 21 May 1992
                          of 27 February 2003                                        on the conservation of natural habitats and of wild fauna and
                                                                                flora, by Article 6(2) to (4) of the latter directive;
in Case C-415/01: Commission of the European Communi-
                    ties v Kingdom of Belgium (1)
(Failure by a Member State to fulfil its obligations —                         2.    Orders the Kingdom of Belgium to pay the costs.
     Conservation of wild birds — Special protection areas)
                             (2003/C 101/14)
                       (Language of the case: French)
                                                                               (1 ) OJ C 369 of 22.12.2001.
(Provisional translation; the definitive translation will be published
                      in the European Court Reports)
In Case C-415/01, Commission of the European Communities
(Agents: G. Valero Jordana and J. Adda) v Kingdom of Belgium


title: Judgment of the Court (Grand Chamber) of 14 September 2004 in Case C-19/03 (reference for a preliminary ruling from the Landgericht München I): Verbraucher-Zentrale Hamburg eV v O2 (Germany) GmbH & Co. OHG (Economic and monetary policy — Regulation (EC) No 1103/97 — Introduction of the euro — Conversion of national currency units to the euro unit — Rounding of monetary amounts to be paid or accounted for after conversion — Contract concluded in the telecommunications sector — Meaning of ‘monetary amounts to be paid or accounted for’ — Per-minute tariffs for telephone calls)

text:
               20.11.2004

               EN

               Official Journal of the European Union

               C 284/3

      JUDGMENT OF THE COURT

   (Grand Chamber)
   of 14 September 2004
   in Case C-19/03 (reference for a preliminary ruling from the Landgericht München I): Verbraucher-Zentrale Hamburg eV v O2 (Germany) GmbH & Co. OHG (1)

   (Economic and monetary policy - Regulation (EC) No 1103/97 - Introduction of the euro - Conversion of national currency units to the euro unit - Rounding of monetary amounts to be paid or accounted for after conversion - Contract concluded in the telecommunications sector - Meaning of ‘monetary amounts to be paid or accounted for’ - Per-minute tariffs for telephone calls)
   (2004/C 284/05)
   Language of the case: German
   In Case C-19/03: reference to the Court under Article 234 EC from the Landgericht München I (Germany), by decision of 17 December 2002, registered at the Court on 20 January 2003, for a preliminary ruling in the proceedings: Verbraucher-Zentrale Hamburg eV and O2 (Germany) GmbH & Co. OHG — the Court, (Grand Chamber) composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, C. Gulmann, J.-P. Puissochet (Rapporteur) and J.N. Cunha Rodrigues, Presidents of Chambers, R. Schintgen, F. Macken, N. Colneric and S. von Bahr, Judges; M. Poiares Maduro, Advocate General; M. Múgica Arzarmendi, Principal Administrator for the Registrar, has given a judgment on 14 September 2004, in which it has ruled:

               1.

               A tariff, such as the per-minute price at issue in the main proceedings, does not constitute a monetary amount to be paid or accounted for within the meaning of the first sentence of Article 5 of Council Regulation (EC) No 1103/97 of 17 June 1997 on certain provisions relating to the introduction of the euro and thus is not to be rounded in every case to the nearest cent. The fact that the tariff relates to a particular multiple of the unit on the basis of which the final amount of the invoice is calculated or that for the consumer the tariff represents the decisive factor as regards the price of the goods or services does not affect that finding.

               2.

               Regulation No 1103/97 must be interpreted as not precluding the rounding to the nearest cent of amounts other than those which are to be paid or accounted for, provided that that rounding practice is consistent with the principle of continuity of contracts safeguarded by Article 3 of the regulation and with the objective pursued by the regulation that the transition to the euro should be neutral; in other words, provided that the rounding practice does not affect contractual obligations entered into by economic agents, including consumers, and that it does not have a real impact on the price actually to be paid.

      (1)   OJ C 70 of 22.3.2003.


title: Case T-186/99: Action brought on 17 August 1999 by Saehan Media Ireland Limited against the Commission of the European Communities

text:
2.10.1999               EN                     Official Journal of the European Communities                                      C 281/31
Action brought on 17 August 1999 by Saehan Media                          Furthermore, the applicant claims that the Commission has
Ireland Limited against the Commission of the European                    failed to give any reasons as to why an error on the part of the
                           Communities                                    Irish customs authorities which it acknowledges for part of the
                                                                          period covered by the Decision should reasonably have been
                         (Case T-186/99)                                  detected by the applicant and, in finding that the applicant
                                                                          could reasonably have detected the Irish authorities’ error, has
                                                                          infringed Article 5(2) by failing to have regard or adequate
                         (1999/C 281/57)                                  regard to (a) the nature of the error, (b) the professional
                                                                          experience of the applicant and (c) the degree of care exercised
                                                                          by the applicant.
                    (Language of the case: English)
                                                                          The applicant also argues that, in refusing remission in respect
An action against the Commission of the European Communi-                 of the import duties in question, the Commission has infringed
ties was brought before the Court of First Instance of the                Article 13 of Regulation (EEC) No 1430/79 and failed to give
European Communities on 17 August 1999 by Saehan Media                    reasons for its decision. In particular, the Commission has
Ireland Limited, represented by Damian Collins and Gerald                 ignored the general equitable nature of the remission procedure
FitzGerald with an address for service in Luxembourg at the               provided for in Article 13 by failing properly to take account
Chambers of Stéphane Le Goueff, 9 avenue Guillaume.                       of the conduct of the Irish authorities and its impact on the
                                                                          applicant and of the situation of the applicant during the
The applicant claims that the Court should:                               periods in question. In addition, the Commission has relied
                                                                          on an incorrect understanding of the concept of ‘obvious
— annul Commission Decision C(99) 968 of 28 April 1999                    negligence’and requires an excessively high level of care on the
     in its entirety;                                                     part of the trader concerned. Finally, the Commission, while
                                                                          finding the existence of a special situation for part of the
— in the alternative, annul the Decision in so far as it relates          period covered by the decision and not finding any deception
     to import duties in respect of the period January 1992 to            on the applicant’s part at any time, has nevertheless denied
     February 1993;                                                       remission although it has also not made any finding of ‘obvious
— in the further alternative, annul the Decision in so far as it          negligence’on the applicant’s part during the period in which a
     relates to import duties in respect of the period January to         special situation is acknowledged or, if it has made such a
     October 1992;                                                        finding of ‘obvious negligence’, it has failed to provide the
                                                                          reasons on which this finding of obvious negligence is based.
— order the Commission to pay the costs.
Pleas in law and main arguments
By the contested Decision the Commission ordered the                             Removal from the register of Case T-169/97 (1)
post-clearance recovery by Ireland of import duties from the
applicant and refused remission in respect of those import                                        (1999/C 281/58)
duties. The applicant argues that in ordering the post-clearance
recovery of the duties, the Commission has infringed Article
5(2) of Regulation (EEC)No 1697/79 and failed to give reasons                                (Language of the case: Italian)
for its Decision. In particular, the Commission has incorrectly
relied on a concept of ‘active error’in applying Article 5(2) and         By order of 19 July 1999 the President of the First Chamber of
has failed to appreciate the extent to which, during certain              the Court of First Instance of the European Communities has
periods covered by the Decision, the Irish authorities commit-            ordered the removal from the register of Case T-169/97: Farine
ted an error by continuing to accept customs entries by the               Laziali SpA v Commission of the European Communities.
applicant bearing a tariff classification which those authorities
knew or should have known was incorrect.                                  (1) OJ C 228 of 26.7.1997.


title: Judgment of the Court (Fifth Chamber) of 8 July 1999 in Case C-178/98: Commission of the European Communities v French Republic (Failure to fulfil obligations - Directive 91/157/EEC on batteries and accumulators containing certain dangerous substances - Failure of a Member State to adopt the programmes provided for by Article 6 of the Directive)

text:
C 333/8                  EN                        Official Journal of the European Communities                                         20.11.1999
Articles 52 of the EC Treaty (now, after amendment, Article 43 EC)            2. Orders the French Republic to pay the costs.
and 58 of the EC Treaty (now Article 48 EC) preclude a Member
State’s legislation under which undertakings established in that State
and exploiting proprietary medicinal products there are charged a             (1) OJ No C 209 of 4.7.1998.
special levy on their pre-tax turnover in certain of those proprietary
medicinal products during the lest tax year before the enactment of
that legislation and are allowed to deduct from the amount payable
only expenditure incurred during the same tax year on research carried
out in the levying State, when it applies to Community undertakings
operating in that State through a secondary place of business.
                                                                                JUDGMENT OF THE COURT
(1) OJ No C 252 of 16.8.1997.
                                                                                (First Chamber)
                                                                                of 8 July 1999
                                                                              in Case C-186/98 (reference for a preliminary ruling from
                                                                              the Tribunal de Cı́rculo do Porto): criminal proceedings
                  JUDGMENT OF THE COURT                                           against Maria Amélia Nunes, Evangelina de Matos (1)
                                                                              (Financial assistance granted from the European Social Fund
                           (Fifth Chamber)
                                                                              — Improper use of funds — Penalties under Community law
                                                                                and national law)
                            of 8 July 1999
                                                                                (1999/C 333/16)
in Case C-178/98: Commission of the European Communi-
                      ties v French Republic (1)
                                                                                (Language of the case: Portuguese)
(Failure to fulfil obligations — Directive 91/157/EEC on
batteries and accumulators containing certain dangerous
substances — Failure of a Member State to adopt the                           (Provisional translation; the definitive translation will be published
    programmes provided for by Article 6 of the Directive)                                        in the European Court Reports)
                                                                              In Case C-186/98: reference to the Court under Article 177 of
                           (1999/C 333/15)                                    the EC Treaty (now Article 234 EC) from the Tribunal de
                                                                              Cı́rculo (District Court), Oporto (Portugal), for a preliminary
                                                                              ruling in the criminal proceedings pending before that court
                     (Language of the case: French)                           against Maria Amélia Nunes, Evangelina de Matos — on the
                                                                              interpretation of the provisions of Community law governing
                                                                              the improper use of financial assistance granted from the
(Provisional translation; the definitive translation will be published        European Social Fund — the Court (First Chamber), composed
                    in the European Court Reports)                            of: P. Jann (Rapporteur), President of the Chamber, D.A.O. Ed-
                                                                              ward and L. Sevón, Judges; F.G. Jacobs, Advocate General;
                                                                              R. Grass, Registrar, has given a judgment on 8 July 1999, in
In Case C-178/98: Commission of the European Communities                      which it has ruled:
(Agents: Götz zur Hausen and Olivier Couvert-Castéra) v
French Republic (Agents: Kareen Rispal-Bellanger and Romain                   1. Community legislation does not classify the improper use of
Nadal) — application for a declaration that, by failing to adopt                   European Social Fund assistance as a criminal offence.
and/or communicate all the measures necessary to comply
with Council Directive 91/157/EEC of 18 March 1991 on                         2. Article 5 of the EC Treaty (now Article 10 EC) requires the
batteries and accumulators containing certain dangerous sub-                       Member States to take all effective measures to sanction conduct
stances (OJ 1991 L 78, p. 38), the French Republic has failed                      which affects the financial interests of the Community. Such
to fulfil its obligations under that directive — the Court                         measures may include criminal penalties even where the Com-
(Fifth Chamber), composed of: J.-P. Puissochet, President of                       munity legislation only provides for civil sanctions. The sanction
Chamber, P. Jann, C. Gulmann (Rapporteur), D.A.O. Edward                           provided for must be analogous to those applicable to infringe-
and L. Sevón, Judges; G. Cosmas, Advocate General; R. Grass,                      ments of national law of similar nature and importance, and
Registrar, has given a judgment on 8 July 1999, in which it:                       must be effective, proportionate and dissuasive.
1. Declares that, by failing to adopt, within the prescribed period,
     all the measures necessary to comply with Article 6 of Council           (1) OJ No C 209 of 4.7.1998.
     Directive 91/157/EEC of 18 March 1991 on batteries and
     accumulators containing certain dangerous substances, the French
     Republic has failed to fulfil its obligations under that article;


title: Case C-388/03: Action brought on 5 September 2003 by the Kingdom of the Netherlands against the Commission of the European Communities

text:
C 275/32               EN                        Official Journal of the European Union                                          15.11.2003
Furthermore, the substantive amendments made by the                      Reference for a preliminary ruling by the Bundesfinanzh-
Council following the Opinion of the Parliament give rise to a           of by order of that Court of 30 July 2003 in the case of
claim that the Parliament’s rights under the co-decision                 Hauptzollamt Hamburg-Jonas against Käserei Champig-
procedure under Article 251 EC were infringed.                                           non Hofmeister GmbH & Co. KG
Finally the Federal Government claims in the alternative that                                       (Case C-385/03)
the principle of proportionality has been infringed since the
total bans provided for in Articles 3 and 4 on advertising in
the press and/or printed publications as well as on the radio                                      (2003/C 275/48)
and the internet deliberately and specifically target local or
regional situations with no cross-border element almost
exclusively, with the result that the extensive prohibitions,
within the meaning of Article 14(1) EC on the improvement                Reference has been made to the Court of Justice of the
of the internal market, are not necessary and are therefore              European Communities by order of the Bundesfinanzhof
disproportionate. The infringement of the principle of pro-              (Federal Finance Court) of 30 July 2003, received at the Court
portionality is all the more serious because the prohibitions            Registry on 12 September 2003, for a preliminary ruling in
have a significant adverse effect on the basic right of freedom          the case of Hauptzollamt Hamburg-Jonas against Käserei
of thought and press freedom, owing to the excessively                   Champignon Hofmeister GmbH & Co. KG on the following
broad and unspecific definition of the terms ‘advertising’ in            question:
Article 2(b) and ‘the press and other printed publications’ in
Articles 1(a) and 3 of the Directive.
                                                                         Must the first and second subparagraphs of Article 11(1) of
(1) OJ L 152, p. 16.
                                                                         Regulation (EEC) No 3665/87 (1), as amended by Regulation
                                                                         (EC) No 2945/94 (2), be interpreted — also in the light of
                                                                         the principle of proportionality — as meaning that false
                                                                         information relating to individual items listed in the export
                                                                         declaration, which could result in the exporter receiving a
                                                                         higher export refund than that to which it is entitled, is by
                                                                         itself sufficient to give rise to a punitive reduction in the export
                                                                         refund in the amount set out in those provisions, even though
Reference for a preliminary ruling by the Supreme Court,                 the exporter expressly stated in connection with the separate
Ireland, by order of that court dated 2 April 2003, in the               application for payment which must be submitted under
          case of Ryanair Ltd against Aer Rianta cpt                     national law that it would not be applying for an export refund
                                                                         in respect of the relevant items in the export declaration?
                         (Case C-382/03)
                                                                         (1) OJ L 351 of 14.12.1987, p. 1.
                         (2003/C 275/47)                                 (2) OJ L 310 of 3.12.1994, p. 57.
Reference has been made to the Court of Justice of the
European Communities by an order of the Supreme Court,
Ireland, dated 2 April 2003, which was received at the Court
Registry on 10 September 2003, for a preliminary ruling in
the case of Ryanair Ltd and Aer Rianta cpt on the following
questions:                                                               Action brought on 5 September 2003 by the Kingdom of
                                                                         the Netherlands against the Commission of the European
A.    Is an airport check-in desk an ‘airport installation’ within                                   Communities
      the meaning of Article 16 (3) of the Directive (1)?
B.    If the answer to A is in the affirmative, is a rent charged                                   (Case C-388/03)
      for the exclusive right to occupy a particular check-in
      desk for a period of one year or greater a fee for access to                                 (2003/C 275/49)
      airport installations within the meaning of Article 16 (3)
      of the Directive?
(1) Council Directive 96/67/EC of 15 October 1996 on access to           An action against the Commission was brought before the
    the groundhandling market at Community airports OJ L 272,            Court of Justice of the European Communities on 5 September
    25.10.1996, p. 36-45.                                                2003 by the Kingdom of the Netherlands, represented by
                                                                         H.G. Sevenster, Head of the European Law Division of the
                                                                         Ministry of Foreign Affairs in The Hague.
 ---pagebreak--- 15.11.2003             EN                       Official Journal of the European Union                                             C 275/33
The applicant claims that the Court should:                             scheme constitutes State aid and must therefore be approved
                                                                        by the Commission is not substantiated by the explicit and
1.    Annul Commission Decision SG (2003) D/230248 of                   coherent statement of reasons required for such a conclusion.
      26 June 2003 concerning Aid measure No N 35/2003
      relating to tradeable NO x emission rights in so far as the
      Commission takes the view in that decision that the               (1) OJ L 213, 30.7.1998, p. 13.
      notified measure constitutes State aid for the purposes of
      Article 87(1) EC (1);
2.    Order the Commission to pay the costs.
Pleas in law and main arguments
                                                                        Appeal brought on 24 September 2003 by Archer Daniels
                                                                        Midland Company and Archer Daniels Midland Ingredi-
The applicant, namely the Kingdom of the Netherlands,                   ents Limited against the judgment delivered on 9 July
notified the Commission under Article 88(3) EC of the ‘NOx              2003 by the Fourth Chamber of the Court of First
emission rights trading scheme’. It requested a decision by the         Instance of the European Communities in case T-224/
Commission that that scheme ‘does not constitute aid’ within            00 (1) between Archer Daniels Midland Company and
the meaning of Article 4(2) of Regulation No 659/99/EC (OJ              Archer Daniels Midland Ingredients Limited and the
1999 L 83, p. 1). By the scheme, the Netherlands Government                      Commission of the European Communities
has complied with its obligations to transpose Directive 2001/
81/EC of the European Parliament and of the Council of
23 October 2001 on national emission ceilings for certain                                       (Case C-397/03 P)
atmospheric pollutants (OJ 2001 L 309, p. 22) in so far as
reductions in emissions by large industrial plants are con-
cerned. With respect to the Netherlands, that directive lays                                     (2003/C 275/50)
down a national NO x emission ceiling of 260 kilotonnes,
which is to be achieved by 2010. By the contested decision of
24 June 2003, the Commission concluded that the measure
constitutes State aid and declared that it had no objection to
the notified measure. The Commission takes the view that the            An appeal against the judgment delivered on 9 July 2003 by
measure is a valuable contribution to Community environmen-             the Fourth Chamber of the Court of First Instance of the
tal policy.                                                             European Communities in case T-224/00 between Archer
                                                                        Daniels Midland Company and Archer Daniels Midland
                                                                        Ingredients Limited and the Commission of the European
Although the Netherlands Government welcomes the fact that              Communities, was brought before the Court of Justice of the
the European Commission has not objected to the measure,                European Communities on 24 September 2003 by Archer
notified by it on a precautionary basis, it seeks, by this action,      Daniels Midland Company, established in Decatur, Illinois
annulment of the Decision in so far as the Commission                   (United States of America) and Archer Daniels Midland
concludes therein that the notified measure constitutes State           Ingredients Limited, established in Erith (United Kingdom),
aid. The Netherlands Government takes the view that it does             represented by C.O. Lenz, L. Martin Alegi, E.W. Batchelor and
not in any way constitute aid.                                          M. Garcia, lawyers, with an address for service in Luxembourg.
In support of its action, the Netherlands Government submits            The Appellants claim that the Court should:
that there has been an infringement of Article 87 EC. The
Netherlands scheme makes no use of State resources within
the meaning of Article 87(1) EC. The measures relating to               (i)   set aside the judgment in so far as it dismisses the
emission rights are financed entirely by private funds. Any                   application brought by ADM in respect of the Decision (2);
profit made by undertakings on the sale of credits does not
arise from the allocation of rights by the State but from the           (ii) annul Article 2 of the Decision in so far as it pertains to
undertakings’ own earnings made as a result of above-                         ADM;
standard performance. The undertakings are not placed at any
advantage. There is therefore no question of aid distorting
competition or affecting trade.                                         (iii) in the alternative to (ii), modify Article 2 of the Decision
                                                                              to reduce further or cancel the fine imposed on ADM;
The applicant further claims that there has been an infringe-           (iv) in the alternative to (ii) and (iii), refer the case back to the
ment of the principle that reasons must be stated. The                        CFI for judgment in accordance with the judgment of the
Commission’s conclusion that the NOx emission rights trading                  ECJ as to the law;


title: Case T-372/07: Action brought on 24 September 2007 — Dimos Kerateas (Municipality of Keratea) v Commission of the European Communities

text:
               24.11.2007

               EN

               Official Journal of the European Union

               C 283/36

         Action brought on 24 September 2007 — Dimos Kerateas (Municipality of Keratea) v Commission of the European Communities
   (Case T-372/07)
   (2007/C 283/66)
   Language of the case: Greek
   Parties

      Applicant: Municipality of Keratea (Attiki, Greece) (represented by: A. Papakonstantinou and M. Khaidarlis)

      Defendant: Commission of the European Communities
   Form of order sought
   The Court is asked to:

               —

               annul Commission Decision E(2004) 5611 of 22 December 2004 concerning the grant of assistance from the Cohesion Fund for the ‘Solid Waste Management Project of the First Attiki District Management Unit in South East Attiki and the Second District Management Unit in Trizinia, 1. Hygienic Landfill Site in the integrated waste management facility at “Vragoni”, Keratea-Lavreotiki, in South East Attiki, 2. Waste transport depot of the Second Attiki District Management Unit in Trizinia’;

               —

               in the event of doubt, order an on-the-spot inspection in the project area and to seek independent technical opinions to corroborate the applicant's arguments;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   As regards its locus standi on the basis of Article 230 EC, the applicant considers that the contested decision, concerning the creation of a Hygienic Landfill Site on an area which is not within the district of the Municipality of Keratea, is of direct and individual concern to it insofar as it is a public body responsible for the protection of public health and the environment in the area of the subsidised project.
   The applicant claims that the contested decision — the content of which it maintains came to its notice on 13 August 2007 — infringes a number of provisions of primary Community law for the protection of health and the environment as well as provisions of secondary Community law laying down the relevant detailed provisions.
   Specifically, the applicant claims that the financing of the project contravenes the aims of maintaining, protecting and improving the quality of the environment, the protection of public health and the prudent and rational use of physical resources. In addition, in the applicant's view, the contested Commission decision infringes first and foremost Articles 3, 4 and 6 of Directive 75/442 (1) and Articles 3 and 4 of Directive 91/156 (2), which lay down specific obligations in the areas of prevention or reduction of waste production and its harmfulness.
   Lastly, according the applicant, it is clear that the creation of a waste management and disposal facility within a protected area cannot in any circumstances be regarded as a project eligible for financing by a financial instrument such as the Cohesion Fund, which by definition should finance only works complying with the requirements of protection of the environment.

      (1)  Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39).

      (2)  Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442/EEC on waste (OJ 1991 L 78, p. 32).


title: Case F-74/10: Action brought on 9 September 2010 — Kimman v Commission

text:
               6.11.2010

               EN

               Official Journal of the European Union

               C 301/63

         Action brought on 9 September 2010 — Kimman v Commission
   (Case F-74/10)
   ()
   2010/C 301/102
   Language of the case: French

      Parties

      Applicant: Eugène Emile Kimman (Overijse, Belgium) (represented by: L. Levi, lawyer)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the applicant’s appraisal report for 2008.

      Form of order sought

               —

               Annul the applicant’s appraisal report for 2008;

               —

               Order the European Commission to pay the costs.


title: Case T-326/10: Action brought on 10 August 2010 — Fraas v OHIM (Light grey, dark grey, beige, dark red and brown coloured checked pattern)

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/43

      Action brought on 10 August 2010 — Fraas v OHIM (Light grey, dark grey, beige, dark red and brown coloured checked pattern)
      (Case T-326/10)
      ()
      (2010/C 288/83)
      Language in which the application was lodged: German

         Parties

         Applicant: V. Fraas GmbH (Helmbrechts-Wüstenselbitz, Germany) (represented by G. Würtenberger and R. Kunze, lawyers)

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

         Form of order sought

                  —

                  Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 June 2010 in Case R 188/2010-4;

                  —

                  Order the Office for Harmonisation in the Internal Market to pay the costs of the proceedings.

         Pleas in law and main arguments

         Community trade mark concerned: Figurative mark representing a light grey, dark grey, beige, dark red and brown coloured checked pattern, for goods in Classes 18, 24 and 25.

         Decision of the Examiner: Registration was refused.

         Decision of the Board of Appeal: The appeal was dismissed.

         Pleas in law: Infringement of Article 7(1)(b) in conjunction with Article 7(2) of Regulation (EC) No 207/2009 (1) since the Community trade mark concerned does have distinctive character, and infringement of Articles 75 and 76 of Regulation (EC) No 207/2009 as the Board of Appeal did not address the applicant's extensive factual and legal submissions.

         (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).


title: Case F-62/14: Action brought on 7 July 2014  — ZZ v Commission

text:
               13.10.2014

               EN

               Official Journal of the European Union

               C 361/31

         Action brought on 7 July 2014 — ZZ v Commission
   (Case F-62/14)
   2014/C 361/46
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: M.-A. Lucas, lawyer)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Civil service — Application for annulment of the Commission’s decision not to admit the applicant to the translation tests — EPSO competition (AD/263/13) to establish a reserve recruitment list of Italian translators.

      Form of order sought

               —

               annul the decision of 19/11/2013 not to admit the applicant to the translation tests;

               —

               if necessary, annul the decision of 27/3/2014 dismissing the applicant’s complaint;

               —

               order the Commission to pay the costs.


title: Case T-593/10: Judgment of the General Court of 24 January 2012 — El Corte Inglés v OHIM — Ruan (B) (Community trade mark — Opposition proceedings — Application for Community figurative mark containing the letter ‘B’ — Earlier Community figurative mark containing the letter ‘B’ — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               3.3.2012

               EN

               Official Journal of the European Union

               C 65/13

         Judgment of the General Court of 24 January 2012 — El Corte Inglés v OHIM — Ruan (B)
   (Case T-593/10) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark containing the letter ‘B’ - Earlier Community figurative mark containing the letter ‘B’ - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2012/C 65/24
   Language of the case: Spanish

      Parties

      Applicant: El Corte Inglés (Madrid, Spain) (represented by: J.L. Rivas Zurdo and E. Seijo Veiguela, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Crespo Carillo, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM: Jian Min Ruan (Mem Martins, Portugal)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 4 October 2010 (Case R 576/2010-2) relating to opposition proceedings between El Corte Inglés and Jian Min Ruan.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action.

               2.

               Orders El Corte Inglès, SA to pay the costs.

      (1)  OJ C 80, 12.3.2011.