title: Case T-178/05: Action brought on 5 May 2005 by the United Kingdom of Great Britain and Northern Ireland against the Commission of the European Communities

text:
               25.6.2005

               EN

               Official Journal of the European Union

               C 155/30

         Action brought on 5 May 2005 by the United Kingdom of Great Britain and Northern Ireland against the Commission of the European Communities
   (Case T-178/05)
   (2005/C 155/58)
   Language of the case: English
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 5 May 2005 by the United Kingdom of Great Britain and Northern Ireland, represented by C. Jackson, agent, assisted by M. Hoskins, Barrister.
   The applicant claims that the Court should:

               —

               join this application with the application lodged by the United Kingdom on 11 April 2005 pursuant to Article 230 EC seeking annulment of the refusal to consider the amended NAP contained in the Commissions's letter of 1 February 2005;

               —

               annul Commission Decision C(2005) 1081 final dated 12 April 2005 concerning the proposed amendment to the national allocation plan for the allocation of greenhouse gas emission allowances notified by the United Kingdom in accordance with Directive 2003/87/EC of the European Parliament and of the Council; and

               —

               order the Commission to pay the United Kingdom's costs of this action.

         Pleas in law and main arguments
   On 30 April 2004, the United Kingdom notified a provisional national allocation plan to the Commission pursuant to Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (1).
   On 7 July 2004, the Commission adopted Decision C(2004)2515/4 final concerning the United Kingdom's national allocation plan under Article 9(3) of the Directive.
   Following the completion of the activities identified in the provisional national allocation plan, the United Kingdom notified the Commission on 10 November 2004 that it wished to amend the provisional national allocation plan to take account of the results of this work.
   By the challenged decision, the Commission found that the proposed amendment to the national allocation plan notified by the United Kingdom to the Commission on 10 November 2004 and last up-dated on 18 February 2005 implying an increase of the emission allowance allocations by 19.8 Mt CO2eq was inadmissible.
   The United Kingdom submits that this finding of inadmissibility is wrong as a matter of law and should be annulled.
   The United Kingdom contends that the challenged decision is wrong as a matter of law on the following grounds:

               —

               the Commission was not entitled to treat the United Kingdom's provisional national allocation plan as definitive in the decision challenged, given the express terms of the national allocation plan;

               —

               the Commission was obliged to consider the United Kingdom's amendments to the national allocation plan as soon as possible in order to enable the United Kingdom to comply with its obligations under the Directive;

               —

               the Commission's Decision C(2004)2515/4 final cannot prevent or restrict the consideration of the comments of the public required by point 9 of Annex III and Article 11(1) of the Directive, and a Member State must remain free to propose any amendments necessary, following public consultation;

               —

               Article 3 of the Commission's Decision C(2004)2515/4 final permits the United Kingdom to notify any amendment to the Commission, including amendments resulting in an increase to the quantity of allowances allocated.

      (1)  OJ L 275 of 25 October 2003, p. 32.


title: Case T-409/06: Judgment of the General Court of 4 March 2010 — Sun Sang Kong Yuen Shoes Factory v Council (Dumping — Imports of footwear with uppers of leather from China and Vietnam — Market economy treatment — Sampling — Lack of cooperation — Rights of the defence — Injury — Obligation to state reasons)

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/38

         Judgment of the General Court of 4 March 2010 — Sun Sang Kong Yuen Shoes Factory v Council
   (Case T-409/06) (1)

   (Dumping - Imports of footwear with uppers of leather from China and Vietnam - Market economy treatment - Sampling - Lack of cooperation - Rights of the defence - Injury - Obligation to state reasons)
   2010/C 113/59
   Language of the case: English

      Parties

      Applicant: Sun Sang Kong Yuen Shoes Factory (Hui Yang) Corp. Ltd (Hui Yang City, China) (represented by I. MacVay, Solicitor, R. Thompson QC and K. Beal, Barrister)

      Defendant: Council of the European Union (represented by: J.-P. Hix, Agent and by G. Berrisch, lawyer)

      Interveners in support of the defendant: European Commission (represented by H. van Vliet and T. Scharf, Agents); Confédération européenne de l’industrie de la chaussure (CEC) (Brussels, Belgium) (represented initially by P. Vlaemminck, G. Zonnekeyn and S. Verhulst and then by P. Vlaemminck and A. Hubert, lawyers); BA.LA. di Lanciotti Vittorio & C. Sas (Monte Urano, Italy) and the 16 other interveners listed in the annex to the judgment (represented by G. Celona, P. Tabellini and C. Cavaliere, lawyers)

      Re:

   Application for partial annulment of Council Regulation (EC) No 1472/2006 of 5 October 2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam (OJ 2006 L 275, p. 1), in so far as it concerns the applicant.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Sun Sang Kong Yuen Shoes Factory (Hui Yang) Corp. Ltd to pay its own costs and those incurred by the Council of the European Union;

               3.

               Orders the European Commission, the Confédération européenne de l’industrie de la chaussure (CEC), BA.LA. di Lanciotti Vittorio & C. Sas and the 16 other interveners listed in the annex to bear their own costs.

      (1)  OJ C 42, 24.2.2007.


title: Case F-92/07: Action brought on 17 September 2007 — Evraets v Commission

text:
               24.11.2007

               EN

               Official Journal of the European Union

               C 283/44

         Action brought on 17 September 2007 — Evraets v Commission
   (Case F-92/07)
   (2007/C 283/79)
   Language of the case: French
   Parties

      Applicant: Pascal Evraets (Lambusart, Belgium) (represented by: N. Lhoëst, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought
   The applicant claims that the Tribunal should:

               —

               annul the decision of the appointing authority publishing the list of officials promoted to grade AST 4 under the 2006 promotion procedure, in so far as the Commission did not take into account the applicant's eligibility for promotion for the purpose of the 2006 promotion procedure and in so far as the applicant's name is not included in the list of promoted officials;

               —

               so far as necessary, annul the express decision of the Commission of 6 June 2007 rejecting the complaint brought by the applicant under Article 90(2) of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) on 16 February 2007;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The applicant, a former temporary servant appointed an official in grade AST 3 from 16 April 2004 after being successful in an internal competition, was held to be ineligible for promotion under the 2006 promotion procedure since he had not demonstrated the ability to work in a third language in accordance with Article 45(2) of the Staff Regulations.
   In support of his appeal, the applicant is putting forward three pleas, the first of which alleges infringement of Article 45(1) of the Staff Regulations and the illegality of Article 10(5) of the General Provisions Implementing Article 45 of the Staff Regulations (‘the GIP’). The applicant maintains that, under Article 45(1) of the Staff Regulations, which requires two years' service in order to be eligible for promotion, he could have been promoted on 16 April 2006, that is, before the entry into force of the requirement to demonstrate the ability to work in a third language. Article 11 of Annex XIII to the Staff Regulations provides that Article 45(2) does not apply to promotions which take effect prior to 1 May 2006. The applicant submits that, by requiring that he have the ability to work in a third language on the ground that his promotion, under Article 10(5) of the GIP, would not become effective until 1 May 2006, the Commission infringed Article 45(1) of the Staff Regulations.
   The second plea alleges unequal treatment and the illegality, first, of Article 11 of Annex XIII to the Staff Regulations and, secondly, of Article 1(1) of the Common Rules on laying down the procedure for implementing Article 45(2) of the Staff Regulations, adopted by the Commission on 19 July 2006. The applicant submits, inter alia, that officials recruited between 15 April 2004 and 30 April 2004 were employed under the same provisions of the Staff Regulations as officials recruited before 15 April 2004, that is, before Article 45(2) of the Staff Regulations came into force. Consequently, by making officials recruited between 15 and 30 April 2004 subject to promotion conditions which are more restrictive than those for officials recruited before 15 April 2004, Article 11 of Annex XIII to the Staff Regulations and Article 1(1) of the Common Rules are discriminatory. Furthermore, the applicant argues that, in accordance with Article 5(3) of Annex XIII to the Staff Regulations, knowledge of a third language is not required for the purposes of the first promotion of officials who, while having been recruited after 1 May 2004, were temporary servants prior to that date. The applicant submits it is unlawful to require knowledge of a third language in the case of officials who, like the applicant, were appointed before that date.
   The third plea alleges infringement of the principles of sound administrative management, effectiveness and the protection of legitimate expectations. The applicant submits inter alia that, in the implementation of Article 45(2) of the Staff Regulations, the Commission did not show all the due care and attention necessary and did not meet the legitimate expectations of officials eligible for promotion under the 2006 promotion procedure. Specifically, the Commission failed to adopt adequate transitional provisions and to take the necessary measures in due time to enable the applicant to learn a third language and thus be eligible for promotion.


title: Case T-105/12: Order of the General Court of 11 October 2012 — Greece v Commission

text:
               1.12.2012

               EN

               Official Journal of the European Union

               C 373/13

         Order of the General Court of 11 October 2012 — Greece v Commission
   (Case T-105/12) (1)

   2012/C 373/25
   Language of the case: Greek
   The President of the First Chamber has ordered that the case be removed from the register.

      (1)  OJ C 133, 5.5.2012.


title: Case C-222/02: Reference for a preliminary ruling by the Bundesgerichtshof by order of that Court of 16 May 2002 in the case of 1. Peter Paul, 2.-4. …, 5. Cornelia Sonnen-Lütte, 6.-10. …, 11. Christel Mörkens against Federal Republic of Germany, represented by the Federal Minister for Finance

text:
24.8.2002                EN                     Official Journal of the European Communities                                        C 202/9
Reference for a preliminary ruling by the Bundesge-                             —     Council Directive 89/299/EEC of 17 April 1989 on
richtshof by order of that Court of 16 May 2002 in the                                the own funds of credit institutions (OJ 1989 L 124,
case of 1. Peter Paul, 2.-4. ..., 5. Cornelia Sonnen-Lütte,                           p. 16): Article 7 in conjunction with Articles 2 to 6;
6.-10. ..., 11. Christel Mörkens against Federal Republic of
Germany, represented by the Federal Minister for Finance
                                                                                —     European Parliament and Council Directive 95/26/
                           (Case C-222/02)                                            EC of 29 June 1995 (OJ 1995 L 168, p. 7): recital
                                                                                15 in the preamble.
                           (2002/C 202/11)
                                                                                Do Council Directives
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesgerichtshof                          —     92/30/EEC of 6 April 1992 on the supervision of
(Federal Court of Justice) of 16 May 2002, received at the                            credit institutions on a consolidated basis (OJ 1992
Court Registry on 17 June 2002, for a preliminary ruling in                           L 110, p. 52): 11th recital in the preamble;
the case of 1. Peter Paul, 2.-4. ..., 5. Cornelia Sonnen-Lütte,
6.-10. ..., 11. Christel Mörkens against Federal Republic of
Germany, represented by the Federal Minister for Finance on                     —     93/6/EEC of 15 March 1993 on the capital adequacy
the following questions:                                                              of investment firms and credit institutions (OJ 1993
                                                                                L 141, p. 1): eighth recital in the preamble;
1.   Do the provisions of Articles 3 and 7 of Directive 94/19/
     EC of the European Parliament and of the Council of
     30 May 1994 on deposit-guarantee schemes (OJ 1994                          —     93/22/EEC of 10 May 1993 on investment services
     L 135, p. 5) confer on the depositor, in the event of his                        in the securities field (OJ 1993 L 141, p. 27): second,
     deposit being unavailable, in addition to the right to be                        fifth, 29th, 32nd, 41st and 42nd recitals;
     compensated by a deposit-guarantee scheme up to the
     amount specified in Article 7(1), the more far-reaching
     right to require that the competent authorities avail
                                                                                provide assistance with interpretation for the purpose of
     themselves of the measures mentioned in Article 3(2) to
                                                                                answering the above question, regardless of whether they
     (5) and, if necessary, revoke the credit institution’s
                                                                                otherwise contain law applicable in the present case?
     authorisation?
     In so far as such a right is conferred on the depositor,
     does that also include the right to claim compensation for            3.   Should the Court find that all or any one of the directives
     damage resulting from the misconduct of the competent                      cited above confer(s) on savers or investors the right to
     authorities, beyond the amount specified in Article 7(1)                   require the competent authorities to avail themselves of
     of the directive?                                                          prudential supervisory measures in their interest, the
                                                                                following further questions are submitted:
2.   Do the provisions, as listed below, of directives harmonis-
     ing the law on the prudential supervision of banks —
     either individually or in combination and, if so, from                     Does a right for a saver or investor to have prudential
     what date onwards — confer on the saver and investor                       supervisory measures taken in his interest in proceedings
     rights to the effect that the competent authorities of                     brought against the Member State concerned have direct
     the Member States must take prudential supervisory                         effect in the sense that the national rules which preclude
     measures, with they are charged by those directives, in                    such a right must be disregarded,
     the interests of that category of persons and must incur
     liability for any misconduct, or does Directive 94/19/EC
     on deposit-guarantee schemes contain an exhaustive set                     or does a Member State which has failed to respect that
     of special provisions for all cases of unavailability of                   right of savers or investors when transposing directives
     deposits?                                                                  incur liability only in accordance with the principles
     —       First Council Directive 77/780/EEC of 12 December                  governing claims for damages against the State under
             1977 on the coordination of laws, regulations and                  Community law?
             administrative provisions relating to the taking up
             and pursuit of the business of credit institutions (OJ
             1977 L 322, p. 30): Article 6(1), fourth and 12th                  In the latter case, has the Member State committed a
             recitals in the preamble;                                          sufficiently serious breach of Community law where it
                                                                                has failed to recognise that a right to have prudential
     —       Second Council Directive 89/646/EEC of 15 Decem-                   supervisory measures taken is conferred?
             ber 1989 on the coordination of laws, regulations
             and administrative provisions relating to the taking
             up and pursuit of the business of credit institutions
             and amending Directive 77/780/EEC (OJ 1989
             L 386, p. 1): Articles 3, 4 to 7, 10 to 17, 11th recital
             in the preamble;


title: Case C-219/05: Judgment of the Court (Fifth Chamber) of 19 April 2007 — Commission of the European Communities v Spain (Failure by a Member State to fulfil its obligations — Directive 91/271/EEC — Pollution and nuisance — Treatment of urban waste water — Agglomeration of Sueca, its coastal districts and certain municipalities of La Ribera — Discharge in a sensitive area without treatment)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 96/8

         Judgment of the Court (Fifth Chamber) of 19 April 2007 — Commission of the European Communities v Spain
   (Case C-219/05) (1)

   (Failure by a Member State to fulfil its obligations - Directive 91/271/EEC - Pollution and nuisance - Treatment of urban waste water - Agglomeration of Sueca, its coastal districts and certain municipalities of La Ribera - Discharge in a sensitive area without treatment)
   (2007/C 96/12)
   Language of the case: Spanish
   Parties

      Applicant: Commission of the European Communities (represented by: D. Recchia, Agent)

      Defendant: Kingdom of Spain (represented by: E. Braquehais and I. del Cuvillo Contreras, Agents)
   Re:
   Failure by a Member State to fulfil its obligations — Infringement of Articles 3, 4 and 5(2) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (OJ 1991 L 135, p. 40) — Urban waste water of Sueca, its coastal agglomerations and certain municipalities of La Ribera — Discharge in a sensitive area without adequate treatment
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to take the measures necessary to ensure that, by 31 December 1998, the urban waste water of the agglomeration of Sueca, its coastal districts (El Perelló, Les Palmeres, Mareny de Barrequetes, Playa del Rey and Boga de Mar) and also certain municipalities of the region of La Ribera (Benifaió, Sollano and Almussafes) is treated appropriately before being discharged in an area declared sensitive, the Kingdom of Spain has failed to fulfil its obligations under the second paragraph of Article 3(1) and Article 5(2) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment, the latter provision being read together with Article 4(4) of that directive.

               2.

               Orders the Kingdom of Spain to pay the costs.

      (1)  OJ C 182 of 23.7.2005.


title: Judgment of the Court of First Instance of 12 January 2005 in Case T-334/03: Deutsche Post EURO EXPRESS GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — EUROPREMIUM — Absolute ground for refusal — Descriptive nature — Article 7(1)(c) of Regulation (EC) No 40/94)

text:
               19.3.2005

               EN

               Official Journal of the European Union

               C 69/14

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 12 January 2005
   in Case T-334/03: Deutsche Post EURO EXPRESS GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

   (Community trade mark - EUROPREMIUM - Absolute ground for refusal - Descriptive nature - Article 7(1)(c) of Regulation (EC) No 40/94)
   (2005/C 69/27)
   Language of the case: German
   In Case T-334/03: Deutsche Post EURO EXPRESS GmbH, represented initially by G. Lindhofer and subsequently by K.-U. Jonas, lawyers, with an address for service in Luxembourg, against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: initially by U. Pfleghar and G. Schneider and subsequently by A. von Mühlendahl and G. Schneider) — action against the decision of the Fourth Board of Appeal of OHIM of 20 June 2003 (Case R 348/2002-4) regarding registration of the sign EUROPREMIUM as a Community trade mark — the Court of First Instance (Third Chamber), composed of J. Azizi, President, M. Jaeger and O. Czúcz, Judges; B. Pastor, Deputy Registrar, for the Registrar, has given a judgment on 12 January 2005, in which it:

               1.

               Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 20 June 2003 (Case R 348/2002-4);

               2.

               Orders the defendant to pay the costs.

      (1)  OJ C 289 of 29.11.2003.


title: Case C-169/15: Request for a preliminary ruling from the Benelux Gerechtshof lodged on 13 April 2015 — Montis Design BV v Goossens Meubelen BV

text:
               13.7.2015

               EN

               Official Journal of the European Union

               C 228/4

         Request for a preliminary ruling from the Benelux Gerechtshof lodged on 13 April 2015 — Montis Design BV v Goossens Meubelen BV
   (Case C-169/15)
   (2015/C 228/04)
   Language of the case: Dutch

      Referring court

   Benelux Gerechtshof

      Parties to the main proceedings

      Applicant: Montis Design BV

      Defendant: Goossens Meubelen BV

      Questions referred

               1)

               Is the term of protection referred to in Article 10, in conjunction with Article 13(1), of Directive 93/98/EEC (the Term of Protection Directive) (1) applicable to rights of copyright that were originally protected by national copyright law but which lapsed before 1 July 1995 on the ground that a formal condition had not been satisfied (in due time), more specifically because a maintenance declaration, as referred to in Article 21(3) of the Uniform Benelux Law on Designs and Models (old version), had not been filed (in due time)?

               2)

               If the answer to Question 1 is in the affirmative:
               Must the Term of Protection Directive be construed as precluding a rule of national legislation under which the copyright in a work of applied art that lapsed before 1 July 1995 on the ground that a formal condition had not been satisfied is deemed to have lapsed permanently?

               3)

               If the answer to Question 2 is in the affirmative:
               If, under national legislation, the copyright in question is to be considered to revive or to be revived at a certain time, from what date does such revival occur?

      (1)  Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights (OJ 1993 L 290, p. 9), now Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the terms of protection of copyright and certain related rights (codified version) (OJ 2006 L 372, p. 12).


title: Reference for a preliminary ruling by the Hof van Cassatie by judgment of that court of 10 February 1995 in the case of Belgian State against Ghent Coal Terminal (Case C-37/95)

text:
22 . 4 . 95          lEN                      Official Journal of the European Communities                                      No C 101 /3
Reference for a preliminary ruling by the Hof van Cassatie               Reference for a preliminary ruling by the House of Lords, by
by judgment of that court of 10 February 1995 in the case of             order of that court of 9 February 1995 , in the case of Regina
          Belgian State against Ghent Coal Terminal                      against Secretary of State for the Environment, ex-parte:
                           ( Case C-37/95 )                                          Royal Society for the Protection of Birds
                             ( 95/C 101 /05 )                                                       ( Case C-44/95 )
                                                                                ( 95/C 101/07)
Reference has been made to the Court of Justice of the
European Communities by a judgment of the Hof van                        Reference has been made to the Court of Justice of the
Cassatie ( Court of Cassation ), Belgium, of 10 February                 European Communities by an order of the House of Lords
1995 , which was received at the Court Registry on                       of 9 February 1995 , which was received at the Court
16 February 1995 , for a preliminary ruling in the case of               Registry on 24 February 1995 , for a preliminary ruling in
Belgian State against Ghent Coal Terminal on the following               the case of Regina against Secretary of State for the
question:
                                                                         Environment, ex-parte : Royal Society for the Protection of
                                                                         Birds, on the following questions :
Does Article 17 of the Sixth Council Directive of 17 May                 1,    is a Member State entitled to take account of the
1 977 on the harmonization of the laws of the Member States                    considerations mentioned in Article 2 of Council
relating to turnover taxes ( a ) mean that the right to deduct                 Directive 79/409/EEC of 2 April 1979 on the
remains in existence for value added tax on investments                        conservation of wild birds ( a ) in classification of an area
which were originally intended for use in the undertaking                      as a Special Protection Area and/or in defining the
but were never in fact put into use by the undertaking ?                       boundaries of such an area pursuant to Article 4 ( 1 )
                                                                               and/or 4 ( 2 ) of that Directive ?
f 1 ) OJ No L 145 , 13 . 6 . 1977, p . 1 .
                                                                         2 . If the answer to question 1 is 'no', may a Member State
                                                                               nevertheless take account of Article 2 considerations in
                                                                               the classification process in so far as:
                                                                               (a ) they amount to a general interest which is superior
                                                                                to the general interest which is repersented by the
                                                                                ecological objective of the Directive ( i.e. the test
                                                                                which the European Court has laid down in e.g.
Reference for a preliminary ruling from the                                          Commission v. Germany ('Leybucht Dykes') Case
Bundesgerichtshof by order of that court of 30 January                               57/89 for derogation from the requirements of
        1995 in the case of Siemens AG v. Henry Nold                                 Article 4 (4 )); or
                           ( Case C-42/95 )
                             ( 95/C 101/06 )                                   ( b ) they amount to imperative reasons of overriding
                                                                                public interest such as might be taken into account
                                                                                under Article 6 (4 ) of Council Directive 92/43/EEC
                                                                                of 21 May 1992, on the conservation of natural
Reference has been made to the Court of Justice of the                               habitats and of wild fauna and flora ( 2 ).
European Communities by an order of the Second Civil
Senate of the Bundesgerichtshof ( Federal Court ofJustice ) of
30 January 1995 , which was received at the Court Registry               t 1 ) OJ No L 103 , 25 . 4 . 1979 , p . 1 .
on 23 February 1995 , for a preliminary ruling in the case of            ( 2 ) OJ No L 206 , 22 . 7. 1992 , p . 7.
Siemens AG v. Henry Nold, on the following question:
Is it compatible with the Second Council Directive of
13 December 1976 i 1 ), in particular Article 29 ( 1 ) and (4 )
thereof, for the legality of a resolution of a general meeting
of shareholders relating to an increase in capital in return for         Reference for a preliminary ruling by the Tribunal de
contributions in kind while at the same withdrawing the                  Travail de Tournai (Fourth Chamber) by judgment of that
shareholders ' right of pre-emption to be determined on the              court of 14 February 1995 in the case of Institut National
basis of a substantive review in accordance with the                     d'Assurances Sociales pour Travailleurs Indépendants
principles laid down in the Bundesgerichtshof's judgments                                      against Hans Kemmler
BGHZ 71 , 40 and BGHZ 83 , 319 ?
                                                                                Case C-53/95 )
                                                                                ( 95/C 101/08 )
(!) OJ No L 26 , 31 . 1 . 1977, p . 1 .
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by a judgment of the Tribunal de
                                                                         Travail de Tournai ( Labour Court, Tournai, Belgium)


title: Case C-150/02 P: Appeal brought on 25 April 2002 by Streamserve Inc. against the judgment delivered on 27 February 2002 by the Fourth Chamber of the Court of First Instance of the European Communities in case T-106/00 between Streamserve Inc. and the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM)

text:
C 169/16                EN                   Official Journal of the European Communities                                       13.7.2002
Pleas in law and main arguments                                               in the Internal Market (Trade Marks and Designs) did not
                                                                              infringe Article 7 (1) (c) of Council Regulation (EC)
                                                                              No 40/94 of 20 December 1993 on the Community
The judgment of the Court of First Instance infringed                         trade mark (2) in adopting its decision of 28 February
Article 90(3) of the EC Treaty (now Article 86(3) EC), as well                2000 (Case R 423/1999-2) with the exception as regards
as the ‘right to sound administration’ and the Commission’s                   goods in the categories ‘manuals and publications’;
‘general duty of supervision’, in so far as it inferred that
individuals have a right to have their complaint under                  2.    for the rest, annul the decision of the Second Board of
Article 90 of the EC Treaty (now Article 86 EC) dealt with and                Appeal of the Office for Harmonization in the Internal
a corresponding right of action. Moreover, it erroneously                     Market (Trade Marks and Designs) of 28 February 2000
inferred that complaints by individuals in the context of                     (Case R 423/1999-2);
Article 90 of the EC Treaty are dismissed by a decision
addressed to the complainant. In that connection the Court of           3.    order the Office for Harmonization in the Internal Market
First Instance has at any rate infringed Article 90(3). If so, and            (Trade Marks and Designs) to pay the costs both at first
in so far as it based its conclusions thereon it has also infringed           instance and on appeal.
the ‘right to sound administration’ and/or the ‘general duty of
supervision’. Finally, the Court infringed Article 173(4) of the
EC Treaty (now Article 230(4) EC) by assuming (in the
alternative) that max.mobil is individually concerned by the
contested letter.                                                       Pleas in law and main arguments
(1) Case T-54/99 max.mobil Telekommunikation Service GmbH v
                                                                        The Appellant maintains that the Court of First Instance
    Commission [2002] ECR II-0000.                                      misinterpreted Article 7 (1) (c) of Regulation 40/94 when it
                                                                        held that the aforementioned article prevents the signs or
                                                                        indications referred to in that provision from being reserved
                                                                        to one undertaking alone because they have been registered as
                                                                        a mark and that the provision thus pursues an aim which is in
                                                                        the public interest, namely that such signs or indications may
                                                                        be freely used by all.
Appeal brought on 25 April 2002 by Streamserve Inc.                     In the Appellant’s view the criteria applied by the Court of
against the judgment delivered on 27 February 2002 by                   First Instance in the application of Article 7 (1) (c) to the facts
the Fourth Chamber of the Court of First Instance of                    of the case are too severe.
the European Communities in case T-106/00 (1) between
Streamserve Inc. and the Office for Harmonization in the
    Internal Market (Trade Marks and Designs) (OHIM)                    (1) OJ C 176, 24.6.2000, p. 29.
                                                                        (2) OJ L 11, 14.1.1994, p. 1.
                         (Case C-150/02 P)
                          (2002/C 169/29)
An appeal against the judgment delivered on 27 February                 Action brought on 26 April 2002 by the Commission
2002 by the Fourth Chamber of the Court of First Instance               of the European Communities against the Republic of
of the European Communities in case T-106/00 between                                                  Austria
Streamserve Inc. and the Office for Harmonization in the
Internal Market (Trade Marks and Designs) (OHIM), was
                                                                                (Case C-155/02)
brought before the Court of Justice of the European Communi-
ties on 25 April 2002 by Streamserve Inc., established in
Raleigh, North Carolina (United States of America), represented                                 (2002/C 169/30)
by J. Kääriäinen and R. Berzelius, lawyers, with an address for
service in Luxembourg.
                                                                        An action against the Republic of Austria was brought before
The Appellant claims that the Court should:                             the Court of Justice of the European Communities on 26 April
                                                                        2002 by the Commission of the European Communities,
1.    annul the judgment of the Court of First Instance of              represented by Josef Christian Schieferer, of its Legal Service,
      27 February 2002 in case T-106/00, Streamserve Inc. v.            with an address for service in Luxembourg at the office of Luis
      OHIM (‘STREAMSERVE’), in so far as it found that the              Escobar Guerrero, of its Legal Service, at Wagner Centre C 254,
      Second Board of Appeal of the Office for Harmonization            Kirchberg, Luxembourg.


title: Judgment of the Court (Fifth Chamber) of 12 December 2002 in Case C-5/01: Kingdom of Belgium v Commission of the European Communities (ECSC Treaty — Aid granted by the Member States — Annulment of Commission Decision 2001/198/ECSC of 15 November 2000 concerning State aid granted by Belgium to Cockerill Sambre SA)

text:
C 19/6                  EN                       Official Journal of the European Communities                                          25.1.2003
                 JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                                                                                (Fifth Chamber)
                          (Fifth Chamber)
                                                                                of 5 December 2002
                       of 12 December 2002
                                                                            in Case C-174/01: Commission of the European Communi-
                                                                                ties v Grand Duchy of Luxembourg ( 1)
in Case C-5/01: Kingdom of Belgium v Commission of the
                   European Communities ( 1)                                (Failure by a Member State to fulfil obligations — Waste
                                                                            management — First indent of Article 11(1) of Directive
                                                                            96/59/EC on the disposal of polychlorinated biphenyls and
(ECSC Treaty — Aid granted by the Member States —                                        polychlorinated terphenyls (PCB/PCT))
Annulment of Commission Decision 2001/198/ECSC of
15 November 2000 concerning State aid granted by Belgium
                                                                                (2003/C 19/11)
                      to Cockerill Sambre SA)
                                                                                (Language of the case: French)
                           (2003/C 19/10)
                                                                            (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                    (Language of the case: French)
(Provisional translation; the definitive translation will be published      In Case C-174/01, Commission of the European Communities
                   in the European Court Reports)                           (Agents: H. Støvlbaek and J. Adda) v Grand Duchy of
                                                                            Luxembourg (Agent: J. Falz): Application for a declaration that,
                                                                            by failing to draw up plans for the decontamination and/or
                                                                            disposal of inventoried equipment and the polychlorinated
                                                                            biphenyls contained therein, in accordance with the require-
                                                                            ments of Article 11 of Council Directive 96/59/EC of 16 Sep-
                                                                            tember 1996 on the disposal of polychlorinated biphenyls and
In Case C-5/01, Kingdom of Belgium (Agent: A. Snoecx,
                                                                            polychlorinated terphenyls (PCB/PCT) (OJ 1996 L 243, p. 31),
assisted by L. Levi, G. Vandersanden and J.-M. de Backer,
                                                                            the Grand Duchy of Luxembourg has failed to fulfil its
avocats) v Commission of the European Communities (Agent:
                                                                            obligations under that directive, the Court (Fifth Chamber),
G. Rozet): Application for the annulment of Commission
                                                                            composed of: D.A.O. Edward, acting for the President of the
Decision 2001/198/ECSC of 15 November 2000 concerning
                                                                            Fifth Chamber, A. La Pergola (Rapporteur), P. Jann, S. von Bahr
State aid granted by Belgium to Cockerill Sambre SA (OJ 2001
                                                                            and A. Rosas, Judges; D. Ruiz-Jarabo Colomer, Advocate
L 71, p. 23), the Court (Fifth Chamber), composed of:
                                                                            General; R. Grass, Registrar, has given a judgment on 5 Decem-
M. Wathelet, President of the Chamber, C.W.A. Timmermans,
                                                                            ber 2002, in which it:
D.A.O. Edward (Rapporteur), P. Jann and S. von Bahr, Judges;
C. Stix-Hackl, Advocate General; H.A. Rühl, Principal Adminis-
trator, for the Registrar, has given a judgment on 12 December              1.    Declares that, by failing to draw up plans for the decontami-
2002, in which it:                                                                nation and/or disposal of inventoried equipment and the
                                                                                polychlorinated biphenyls contained therein, in accordance with
                                                                                the requirements of the first indent of Article 11(1) of Council
1.    Dismisses the application;                                                  Directive 96/59/EC of 16 September 1996 on the disposal of
                                                                                polychlorinated biphenyls and polychlorinated terphenyls (PCB/
                                                                                PCT), the Grand Duchy of Luxembourg has failed to fulfil its
2.    Orders the Kingdom of Belgium to pay the costs.                             obligations under that directive;
                                                                            2.    Orders the Grand Duchy of Luxembourg to pay the costs.
( 1) OJ C 61 of 24.02.2001.
                                                                            (1 ) OJ C 173 of 16.6.2001.


               3.9.2005

               EN

               Official Journal of the European Union

               C 217/63

         Removal from the Register of Case T-65/97 (1)

   (2005/C 217/131)

      (Language of the case: Dutch)

   By order of 16 June 2005, the President of the Fifth Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-65/97, Th.H.P. Neelen v Council of the European Union and Commission of the European Communities.

      (1)  OJ C 142 of 10.5.1997


title: Case C-152/99: Action brought on 23 April 1999 by the Commission of the European Communities against Ireland

text:
3.7.1999                  EN                   Official Journal of the European Communities                                        C 188/21
3. If Question 2 is answered in the affirmative, is the free              Action brought on 23 April 1999 by the Commission of
     movement of capital under Article 73b(l) of the EC Treaty                     the European Communities against Ireland
     ancillary to the other freedoms under the EC Treaty (e.g.
     freedom of establishment and freedom to provide services),
     so that the acquisition of land in a State of which an EU                                      (Case C-151/99)
     citizen is not a national which cannot be based on other
     freedoms under the EC Treaty also cannot be carried out                                        (1999/C 188/47)
     in reliance on the free movement of capital?
                                                                          An action against Ireland was brought before the Court of
(1) OJ 1990 L 180, p. 26.                                                 Justice of the European Communities on 23 April 1999 by the
(2) OJ 1988 L 178, p. 5.                                                  Commission of the European Communities, represented by
                                                                          Frank Benyon, Legal Adviser, acting as agent, with an address
                                                                          for service in Luxembourg at the office of Carlos Gómez de la
                                                                          Cruz, member of the legal Service of the Commission, Centre
                                                                          Wagner, Kirchberg.
                                                                          The Applicant claims that the Court should:
                                                                          1) declare that by failing to notify the laws, regulations or
Reference for a preliminary ruling from the Svea Hovrätt,                     administrative provisions necessary to comply with
by order of that court of 26 March 1999, in the case of                       Council Directive 95/18/EC of 19 June 1995 concerning
the State against Stockholm Aktiebolag and Stockholm                          the licensing of railway undertakings (1), or by failing to
                     Lindöpark against the State                              adopt the measures necessary to comply with it, Ireland
                                                                              has failed to fulfil its obligations under that Directive;
                           (Case C-150/99)
                                                                          2) order Ireland to pay the costs.
                           (1999/C 188/46)
                                                                          Pleas in law and main arguments
Reference has been made to the Court of Justice of the
European Communities, by order of the Svea Hovrätt of
23 April 1999, for a preliminary ruling in the case of the                Article 189 of the EC Treaty, under which a directive shall be
State against Stockholm Aktiebolag and Stockholm Lindöpark                binding, as to the result to be achieved, upon each Member
against the State on the following questions:                             State, carries by implication an obligation on the Member
                                                                          States to observe the period for compliance laid down in the
1. Do Articles 13A(l)(m) and 13B(b) (1) of the Sixth VAT                  directive. That period expired on 27 June 1997 without Ireland
     Directive preclude national provisions providing for a               having enacted the provisions necessary to comply with the
     general exemption from VAT for the supply of sports                  directive referred to in the conclusions of the Commission.
     facilities, as laid down in the second paragraph of Article 2
     of Chapter 3 of the Mervärdesskattelagen (1994:200), in
     the version in force before 1 January 1997?                          (1) OJ L 143, 27.06.95, p. 70.
2. Does Article 13, in combination with Articles 2, 6 and 17
     of the Sixth VAT Directive, confer on individuals rights on
     which they can rely as against Member States before a
     national court?
3. In the event that the first two questions are answered in
     the affirmative:
                                                                          Action brought on 23 April 1999 by the Commission of
                                                                                the European Communities against Ireland
     Does the implementation and application of the exemption
     provided for in the second paragraph of Article 2 of
     Chapter 3 of the Mervärdesskattelagen (1994:200) entail                                        (Case C-152/99)
     such a serious (clear) infringement of Community law that
     it can render a Member State liable in damages?
                                                                                (1999/C 188/48)
(1) Sixth Council Directive (77/388/EEC) of 17 May 1977 on the            An action against Ireland was brought before the Court of
    harmonisation of the laws of the Member States relating to            Justice of the European Communities on 23 April 1999 by the
    turnover taxes — Common system of value added tax: uniform            Commission of the European Communities, represented by
    basis of assessment (OJ 1977 L 145, p. 1).
                                                                          Frank Benyon, Legal Adviser, acting as agent, with an address
                                                                          for service in Luxembourg at the office of Carlos Gómez de la
                                                                          Cruz, member of the legal Service of the Commission, Centre
                                                                          Wagner, Kirchberg.
 ---pagebreak--- C 188/22                 EN                       Official Journal of the European Communities                                        3.7.1999
The Applicant claims that the Court should                                   Action brought on 30 April 1999 by the Commission of
                                                                               the European Communities against the Italian Republic
1) declare that by failing to notify the laws, regulations or
     administrative provisions necessary to comply with
     Council Directive 95/19/EC of 19 June 1995 concerning                                             (Case C-159/99)
     the allocation of railway infrastructure capacity and the
     charging of infrastructure fees (1), or by failing to adopt the
     measures necessary to comply with it, Ireland has failed to                                      (1999/C 188/50)
     fulfil its obligations under that Directive;
2) order Ireland to pay the costs.                                           An action against the Italian Republic was brought before the
                                                                             Court of Justice of the European Communities on 30 April
                                                                             1999 by the Commission of the European Communities,
                                                                             represented by Paolo Stancanelli of its Legal Service, acting as
Pleas in law and main arguments                                              Agent, with an address for service in Luxembourg at the office
                                                                             of Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
Article 189 of the EC Treaty, under which a directive shall be
binding, as to the result to be achieved, upon each Member
State, carries by implication an obligation on the Member                    The applicant claims that the Court should:
States to observe the period for compliance laid down in the
directive. That period expired on 27 June 1997 without Ireland               — Declare that the Italian Republic has failed to fulfil its
having enacted the provisions necessary to comply with the                       obligations under Community Law
directive referred to in the conclusions of the Commission.
                                                                                •   by laying down rules permitting the capture and
(1) OJ L 143, 27.06.95, p. 75.                                                        keeping of three species (passer italiae, passer mon-
                                                                                tanus and sturnus vulgaris), contrary to Articles 5 and
                                                                                7 of Council Directive 79/409/EEC (1) and Annex II
                                                                                thereto, and by providing that those rules are to apply
                                                                                by way of a general and permanent derogation, which
                                                                                is contrary to Article 9 of that Directive and engenders
                                                                                an unacceptable degree of legal uncertainty; and
                                                                                •   by laying down rules concerning the conditions and
Reference for a preliminary ruling by the Tribunal Tribut-                            detailed rules for the application of the derogation from
ário de 1a Instância, Faro, by order of that court of                                the prohibitions laid down by Directive 79/409/EEC
11 March 1999, in the case of Corticeira Amorim-Algarve                               which do not fully comply with the requirements
                      Lda. and Fazenda Pública                                       under Article 9 thereof, in particular as regards the
                                                                                reasons for derogation, listed in Article 9(1)(a) and (b);
                           (Case C-158/99)
                                                                             — Order the Italian Republic to pay the costs of the proceed-
                           (1999/C 188/49)                                        ings.
Reference has been made to the Court of Justice of the
European Communities by an order of the Tribunal Tributärio                  Pleas in law and main arguments
de 1a Instância, Faro, for a preliminary ruling in the case of
Corticeira Amorim-Algarve Lda. v Fazenda Pública, on the
following question:
                                                                             The first infrinqement
Is Article 2 of the Schedule of Land Registry Fees, in requiring
to be added to the fixed fee under Article 1 thereof the variable            The Commission maintains that the rules laid down by
fee based on value provided for therein, contrary to Article 12              Articles 4(4) and 5(2) of Law No 157/92, which authorise the
of Directive 69/335, (1) in so far as it is prohibited, under the            capture and keeping of three protected species (passer italiae,
latter article, to levy a charge whose amount is calculated on               passer montanus and sturnus vulgaris) are manifestly contrary
the basis not of the cost of the individual service but of the               to Articles 5 and 7 of Directive 79/409 and Annex II thereto,
overall financing and investment costs of the body responsible               and that Article 3 of the DPCM (2) of 27 September 1997,
for providing the service in question?                                       according to which those rules may be justified under the
                                                                             derogation provided for in Article 9 of the Directive, does not
                                                                             remedy that infringement because the ensuing legal situation
(1) Council Directive 69/335/EEC concerning indirect taxes on the            is incompatible with the principle of legal certainty and the
    raising of capital (OJ English Special Edition 1969 (II), p. 412).       requirement that the Directive be clearly transposed into
                                                                             national law, and because the provision at issue introduces
                                                                             unacceptable arrangements for general and permanent dero-
                                                                             gation from the prohibitions laid down in the Directive.


title: Cases C-515/99 and C-519 to C-540/99: References for a preliminary ruling by the Unabhängiger Verwaltungssenat Salzburg by orders of that court of 22 December 1999 in the appeals concerning (1) Hans Reisch and twenty-eight others, (2) Bürgermeister der Landeshauptstadt Salzburg, (3) Grundverkehrsbeauftragter des Landes Salzburg and (4) Grundverkehrslandeskommission des Landes Salzburg

text:
18.3.2000               EN                       Official Journal of the European Communities                                         C 79/15
     Even if the latest scientific position is not yet clear, it is         of the Salzburger Grundverkehrsgesetz (Salzburg Land Transfer
     legally wrong for the Commission to lay down more                      Law) of 1997 in the version published in LGBl. No. 11/1999,
     stringent requirements in respect of measures adopted by               whereby any person who wishes to acquire a building plot in
     Member States than it does in respect of itself. In any                the federal Land of Salzburg must comply with a notification
     event, in a situation of general uncertainty where, even in            or authorisation procedure in respect of the acquisition of that
     the Commission’s view, it is impossible to make any                    plot, with the consequence that one of the fundamental
     definitive statements on the danger, and the harmonising               freedoms of the acquirer of title as guaranteed by the laws of
     directive itself provides for timely re-evaluation, the Mem-           the European Union has been infringed in this case?
     ber States must have discretion as to the continuing need
     for national risk-avoidance measures. That is exactly the
     purpose of the national sovereignty exception in old
     Article 100a(4) and the same must apply to Article 95(5)
     EC.
                                                                            Reference for a preliminary ruling from the Berufungs-
(1) The Commission’s decision of 26.10.1999 on an individual                senat V of the Finanzlandesdirektion for Vienna, Niederö-
    Member State’s conditions for mineral wool communicated by              sterreich and Burgenland, by order of that court of
    Germany in derogation from Directive 97/69/EC adapting to               2 December 1999 in the case of Walter Schmid v Finan-
    technical progress for the 23rd time Council Directive 67/548/EEC           zamt for the 9th, 18th and 19th Districts in Vienna
    on the approximation of the laws, regulations and administrative
    provisions relating to the classification, packaging and labelling
                                                                                (Case C-516/99)
    of dangerous substances
                                                                                (2000/C 79/28)
                                                                            Reference has been made to the Court of Justice of the
                                                                            European Communities by order of the Berufungssenat V
                                                                            (Appeal Chamber V) of the Finanzlandesdirektion (Regional
                                                                            Finance Appeal Authority) for Vienna, Niederösterreich and
                                                                            Burgenland, of 2 December 1999, which was received at the
                                                                            Court Registry on 30 December 1999, for a preliminary ruling
References for a preliminary ruling by the Unabhängiger                     in the case of Walter Schmid v Finanzamt (Finance Authority)
Verwaltungssenat Salzburg by orders of that court of                        for the 9th, 18th and 19th Districts in Vienna, on the following
22 December 1999 in the appeals concerning (1) Hans                         questions:
Reisch and twenty-eight others, (2) Bürgermeister der
Landeshauptstadt Salzburg, (3) Grundverkehrsbeauftrag-                      1. Do Article 73b(1) in conjunction with Article 73d(1)(a)
ter des Landes Salzburg and (4) Grundverkehrslandes-                             and (b) and (3) of the EC Treaty (now Article 56(1) in
               kommission des Landes Salzburg                                    conjunction with Article 58(1)(a) and (b) and (3) EC)
                                                                                preclude a provision such as Paragraph 97 of the Einkom-
                                                                                mensteuergesetz (‘EStG’; Law on Income Tax) of 1988
           (Cases C-515/99 and C-519 to C-540/99)                                (BGBI 1988/400; as amended, BGBI 1996/797), which
                                                                                provides (pursuant to Paragraph 1(1)(1)(c) of the Endbe-
                            (2000/C 79/27)                                       steuerungsgesetz (Law on Final Taxation), BGBI 1993/11)
                                                                                that final taxation of dividends, interest and other earnings
                                                                                from foreign shares is excluded, and thus the rate of
Reference has been made to the Court of Justice of the                           taxation in respect of domestic shares is 25 %, whereas the
European Communities by orders of the Unabhängiger Verwal-                       rate of taxation in respect of foreign shares may be up to
tungssenat Salzburg of 22 December 1999, received at the                         50 %?
Court Registry on 30 December 1999, for preliminary rulings
in the appeals concerning (1) Hans Reisch and twenty-eight                  2. Do Article 73b(1) in conjunction with Article 73d(1)(a)
others, (2) Bürgermeister der Landeshauptstadt Salzburg, (3)                     and (b) and (3) of the EC Treaty (now Article 56(1) in
Grundverkehrsbeauftragter des Landes Salzburg and (4) Grund-                     conjunction with Article 58(1)(a) and (b) and (3) EC)
verkehrslandeskommission des Landes Salzburg on the follow-                      preclude a provision such as Paragraph 37(1) and (4) of
ing question:                                                                    the EStG of 1988 (BGBI 1988/400), which provides that
                                                                                dividends of any kind from shareholdings in domestic
                                                                                limited companies in the form of shares are subject to a
Are the provisions of Article 56 et seq. of the EC Treaty to be                  tax rate reduced to half of the average tax rate applicable
interpreted as precluding                                                        to the aggregate income, but that dividends of any kind
                                                                                from shareholdings in limited companies whose seat and
— (Cases C-519/99 to C-526/99:) the application of Para-                         place of management are in another EU Member State or
     graphs 12 to 14                                                             a non-Member State are not subject to any reduction of
                                                                                that kind?
— (Cases C-515/99 and C-527/99 to C-540/99:) the appli-
     cation of Paragraphs 12, 36 and 43


title: Case C-340/00 P: Appeal brought on 15 September 2000 by the Commission of the European Communities against the judgment delivered on 14 July 2000 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-82/99 between Michael Cwik and the Commission of the European Communities

text:
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: Case T-138/04: Action brought on 7 April 2004 by Cementir Cementerie del Tirreno spa against the Commission of the European Communities

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 118/51

         Action brought on 7 April 2004 by Cementir Cementerie del Tirreno spa against the Commission of the European Communities
   (Case T-138/04)
   (2004/C 118/111)
   Language of the case: Italian
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 7 April 2004 by Cementir Cementerie del Tirreno spa, represented by Denis Fosselard and Piero Fattori, lawyers.
   The applicant claims that the Court should:

               —

               annul the decision contained in the letter of 28 January 2004 inasmuch as it sets the default interest on the fine the applicant is required to pay at the sum of EUR 4 770 949,89

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments:
   In the contested decision, the Commission applied a fixed rate of 7.25 % to determine the default interest owed on the amount of the fine imposed on Cementir by Commission Decision 94/815/EC of 30 November 1994, as amended by the Court of First Instance in Case T-87/95 of 15 March 2000, and subsequently upheld by the Court of Justice of the European Communities in Case C-219/00 P of 7 January 2004.
   The applicant contests the decision and bases its action on two grounds.
   In the first ground, it pleads infringement of the general principles of Community law and in particular of the right to effective judicial protection, since the application of a fixed rate of 7.25 % for a period of nine years has produced an excessive and particularly onerous amount of interest. According to the applicant, the use of a fixed rate, calculated on the basis of the market situation in 1995, proves completely unreasonable when applied to an extremely long time period such as more than nine years. Further, in the period in question market rates have fallen considerably and that has brought about a situation in which Cementir's right to judicial protection has been subject to particularly onerous conditions.
   In its second ground, the applicant asks the Court to annul the decision contained in the letter of 28 January 2004 on account of infringement of the principle of proportionality enshrined in Article 5 (ex Article 3b) of the EC Treaty. Cementir considers that the application of a variable rate of interest (increased by a reasonable spread) would be as effective in attaining the objectives pursued by the Commission, without imposing unjustified restrictions on the right to full judicial protection.


title: Case C-680/15: Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 17 December 2015 — Asklepios Kliniken Langen-Seligenstadt GmbH v Ivan Felja

text:
               4.4.2016

               EN

               Official Journal of the European Union

               C 118/5

         Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 17 December 2015 — Asklepios Kliniken Langen-Seligenstadt GmbH v Ivan Felja
   (Case C-680/15)
   (2016/C 118/06)
   Language of the case: German

      Referring court

   Bundesarbeitsgericht

      Parties to the main proceedings

      Appellant: Asklepios Kliniken Langen-Seligenstadt GmbH

      Respondent: Ivan Felja

      Questions referred

   I.

               1.

               Does Article 3 of Council Directive 2001/23/EC of 12 March 2001 (1) preclude a provision of national law which provides that, in the event of a transfer of an undertaking or business, all conditions of employment agreed between the transferor and the employee, individually and in the exercise of their freedom of contract, in the contract of employment transfer to the transferee unaltered, as if he had himself agreed them in an individual contract with the employee, where national law provides for both consensual and unilateral adjustments by the transferee?

               2.

               If Question 1 is answered in the affirmative, either generally or for a defined group of individually agreed conditions of employment in the employment contract between the transferor and employee:
               Does the application of Article 3 of Directive 2001/23/EC have the effect that certain terms of the contract of employment between the transferor and the employee which have been agreed in the exercise of freedom of contract are to be excluded from being transferred unaltered to the transferee, and are to be adjusted simply by reason of the transfer of the undertaking or business?

               3.

               If, according to the Court of Justice’s answers to Questions 1 and 2, an individual provision which has been agreed in an individual contract, under which certain provisions in a collective agreement are, dynamically and in the exercise of freedom of contract, incorporated into the employment contract, is not transferred unaltered to the transferee:

                           a)

                           Does this apply also where neither the transferor nor the transferee is party to a collective agreement or is affiliated to such a party, that is, where, even prior to the transfer of the undertaking or business, the provisions in the collective agreement would not have been applicable to the employment relationship with the transferor in the absence of the term referring to them in the agreement made, in the exercise of freedom of contract, in the contract of employment?

                           b)

                           If the answer to that question is in the affirmative:

         Does this apply also if the transferor and the transferee are undertakings within the same group?
   II.
   Does Article 16 of the Charter of Fundamental Rights of the European Union preclude a national provision enacted to implement Directive 77/187/EEC (2) or Directive 2001/23/EC which provides that, in the event of a transfer of an undertaking or a business, the transferee is bound by the conditions of employment agreed individually and in the exercise of their freedom of contract by the transferor with the employee as if he had agreed them himself, even if these conditions incorporate certain provisions of a collective agreement, which would not otherwise apply to the employment contract, into the employment contract dynamically, in so far as national law provides for both consensual and unilateral adjustments by the transferee?

      (1)  Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ 2001 L 82, p. 16).

      (2)  Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses (OJ 1977 L 61, p. 26).


title: Case C-54/09 P: Judgment of the Court (First Chamber) of 29 July 2010 — Hellenic Republic v European Commission (Appeals — Agriculture — Common organisation of the market in wine — Aid for the restructuring and conversion of vineyards — Regulation (EC) No 1493/1999 — Fixing of the definitive financial allocations made to Member States — Regulation (EC) No 1227/2000 — Article 16(1) — Time-limit — Binding nature)

text:
               11.9.2010

               EN

               Official Journal of the European Union

               C 246/5

         Judgment of the Court (First Chamber) of 29 July 2010 — Hellenic Republic v European Commission
   (Case C-54/09 P) (1)

   (Appeals - Agriculture - Common organisation of the market in wine - Aid for the restructuring and conversion of vineyards - Regulation (EC) No 1493/1999 - Fixing of the definitive financial allocations made to Member States - Regulation (EC) No 1227/2000 - Article 16(1) - Time-limit - Binding nature)
   2010/C 246/07
   Language of the case: Greek

      Parties

      Appellant: Hellenic Republic (represented by: I. Chalkias and M. Tassopoulou, Agents)

      Other party to the proceedings: European Commission (represented by: H. Tserepa-Lacombe and F. Jimeno Fernández, acting as Agents)

      Re:

   Appeal brought against the judgment of the Court of First Instance (Fifth Chamber) of 11 December 2008 in Case T-339/06 Greece v Commission, by which the Court dismissed an action for annulment of Commission Decision 2006/669/EC of 4 October 2006 fixing, for the 2006 financial year and in respect of a certain number of hectares, the definitive financial allocations to Member States for the restructuring and conversion of vineyards under Council Regulation (EC) No 1493/1999 (notified under document number C(2006) 4348) (OJ 2006 L 275, p. 62) in so far as the decision fixes the hectares and the definitive financial allocations concerning Greece

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders the Hellenic Republic to pay the costs.

      (1)  OJ C 82, 4.4.2009.


title: Case C-443/16: Order of the Court (Tenth Chamber) of 9 February 2017 (request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 8 de Madrid — Spain) — Francisco Rodrigo Sanz v Universidad Politécnica de Madrid (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clause 4 — Successive fixed-term contracts in the public sector — Restructuring the organisation of universities — National rules — Integration of college lecturers into the body of university lecturers — Condition — Attainment of a doctorate degree — Changing full-time posts into part-time posts — Applied only to teachers employed as interim civil servants — Principle of non-discrimination)

text:
               24.4.2017

               EN

               Official Journal of the European Union

               C 129/4

         Order of the Court (Tenth Chamber) of 9 February 2017 (request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 8 de Madrid — Spain) — Francisco Rodrigo Sanz v Universidad Politécnica de Madrid
   (Case C-443/16) (1)

   ((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court of Justice - Directive 1999/70/EC - Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP - Clause 4 - Successive fixed-term contracts in the public sector - Restructuring the organisation of universities - National rules - Integration of college lecturers into the body of university lecturers - Condition - Attainment of a doctorate degree - Changing full-time posts into part-time posts - Applied only to teachers employed as interim civil servants - Principle of non-discrimination))
   (2017/C 129/05)
   Language of the case: Spanish

      Referring court

   Juzgado de lo Contencioso-Administrativo No 8 de Madrid

      Parties to the main proceedings

      Applicant: Francisco Rodrigo Sanz

      Defendant: Universidad Politécnica de Madrid

      Operative part of the order

   Clause 4(1) of the framework agreement on fixed-term work concluded on 18 March 1999, which is set out in the annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which, in the context of measures restructuring the organisation of universities, authorises the competent authorities of the Member State concerned to reduce by half the working hours of college lecturers employed as interim civil servants on account of them not having a doctorate degree, whereas university lecturers employed as permanent civil servants who also do not have a doctorate degree are not subject to the same measure.

      (1)  OJ C 410, 7.11.2016.


title: Case C-98/08: Order of the President of the Fourth Chamber of the Court of 21 January 2009 (reference for a preliminary ruling from the Juzgado de lo Mercantil de Madrid — Spain) — Asociación de Gestión de Derechos Intelectuales (AGEDI), Asociación de Artistas Intérpretes o Ejecutantes — Sociedad de Gestión de España (AIE) v Sogecable, SA, Canal Satélite Digital SL

text:
               16.5.2009

               EN

               Official Journal of the European Union

               C 113/28

         Order of the President of the Fourth Chamber of the Court of 21 January 2009 (reference for a preliminary ruling from the Juzgado de lo Mercantil de Madrid — Spain) — Asociación de Gestión de Derechos Intelectuales (AGEDI), Asociación de Artistas Intérpretes o Ejecutantes — Sociedad de Gestión de España (AIE) v Sogecable, SA, Canal Satélite Digital SL
   (Case C-98/08) (1)

   2009/C 113/54

      Language of the case: Spanish

   The President of the Fourth Chamber of the Court has ordered that the case be removed from the register.

      (1)  OJ C 128, 24.5.2008.


title: Reference for a preliminary ruling from the Raad van Staat, Netherlands, by judgment of that court of 17 June 1997 in the case of A. M. L. Van Rooij v. Dagelijks Bestuur van het Waterschap de Dommel (Case C-231/97)

text:
No C 252/ 18            EN                  Official Journal of the European Communities                                       16 . 8 . 97
Article 3 ( 3 ) and Columns C, D and E of Annex I to the                      national driving licence issued by a Member State or a
Directive and, secondly, Article 4 (2 ), Article 5 or footnote                Community model driving licence and who could have
No 10 to Annex I to the Directive .                                           obtained a licence from the host State in exchange for
                                                                              that licence, but on 27 July 1993 had not made that
                                                                              exchange within the prescribed period, from being
(>) OJ No L 271 , 29 . 10 . 1979, p . 44 .
( 2 ) OJ No L 302, 15 . 11 . 1985 .
                                                                             treated as driving without a licence and thus rendered
                                                                             punishable by imprisonment or a fine ?
                                                                       (') OJ No L 375 , 31 . 12 . 1980, p . 1 .
                                                                       ( 2 ) OJ No L 237, 24 . 8 . 1991 , p. 1 .
Reference for a preliminary ruling by the Hof van Cassatie
van Belgie by order of that court of 17 June 1997 in the
     case of Awoyemi Ibiyinka against Openbaar Ministerie
                           Case C-230/97 )                             Reference for a preliminary ruling from the Raad van
                            ( 97/C 252/35 )                            Staat, Netherlands, by judgment of that court of 17 June
                                                                       1997 in the case of A. M. L. Van Rooij v. Dagelijks
                                                                                Bestuur van het Waterschap de Dommel
                                                                                Case C-231 /97 )
Reference has been made to the Court of Justice of the
European Communities by order of the Hof van Cassatie                                              ( 97/C 252/36 )
van Belgie ( Belgian Court of Cassation ) of 17 June 1997,
which was received at the Court Registry on 24 June
1997, for a preliminary ruling in the case of Awoyemi
Ibiyinka against Openbaar Ministerie on the following                  Reference has been made to the Court of Justice of the
questions :
                                                                       European Communities by a judgment of the Raad van
                                                                       State ( Council of State ), Netherlands, of 17 June 1997,
                                                                       which was received at the Court Registry on 25 June
                                                                       1997, for a preliminary ruling in the case of A. M. L. Van
1 . Do the provisions of the first Council Directive 80/               Rooij v. Dagelijks Bestuur van het Waterschap de Dommel
       1263/EEC (*) of 4 December 1980 on the introduction
                                                                       ( Management Committee of the Dommel Water Board ) on
       of a Community driving licence, in particular Article 8         the following questions :
       thereof, preclude the driving of a motor vehicle by a
       person who is not a citizen of the European Union but
       who holds a national driving licence issued by a                1 . Must the term 'discharge' in Article 1 ( 2 ) ( d ) of
       Member State or a Community model driving licence                      Council Directive 76/464/EEC of 4 May 1976 on
       and who could have obtained a licence from the host
                                                                             pollution caused by certain dangerous substances
       State in exchange for it, but who did not do so within                 discharged into the aquatic environment of the
       the prescribed period, from being treated as driving                   Community ( OJ No L 129, 18 . 5 . 1976, p. 23 ) be
       without a licence and thus rendered punishable by                      interpreted to include the precipitation of
       imprisonment or a fine ?                                              contaminated water on to surface water ? In that
                                                                             connection does the distance from which the steam in
                                                                              question is precipitated onto the surface water have
2 . Do Article 1 (2 ) of Council Directive 91/439/EEC ( 2 )                   any relevance ?
       of 29 July 1991 on driving licences, providing for
       mutual recognition for driving licences issued by the
       Member States, and the right provided for in                    2 . Does the term 'discharge' cover steam first precipitated
       Article 8 ( 1 ) of that Directive to exchange licences                 onto land and roofs and, then reaching the surface
       mean that a person who is not a citizen of the                        water, by way of storm water drains, whether
       European Union, but who holds a national driving                       belonging to the establishment concerned or to
       licence issued by a Member State or a Community                       residential or other buildings ? Is it relevant to the
       model driving licence and has his normal residence in                  reply to be given to this question whether the
       the territory of another Member State, has the right,                 contaminated steam reaches the surface water by way
       even where there are no national rules in this regard,                 of the    storm   water      drains  of the establishment
       to rely on the application of those provisions in court               concerned or via those belonging to third parties ?
       proceedings as from 1 July 1996 ?
                                                                       3 . If Questions 1 and/or 2 are answered in the negative,
3 . If the answer to Question 2 is in the affirmative, do                     is it permissible for national legislation to assign a
       Articles 1 (2 ) and 8 ( 1 ) of Council Directive 91/439/               different, more wide-ranging meaning to the term
       EEC of 29 July 1991 on driving licences have                           'discharge' than that contained in the Directive ?
       retroactive effect in the sense that they preclude the
       driving of a motor vehicle by a person who is not a
       citizen of the European Union but who holds a


title: Case T-410/13: Order of the General Court of 30 September 2014  — Bitiqi and Others v Commission and Others (Action for annulment — Common Foreign and Security Policy — ‘Rule of law’ mission conducted by the European Union in Kosovo (Eurlex Kosovo) — Decisions of the head of the mission not to renew the employment contracts — Manifest lack of jurisdiction)

text:
               24.11.2014

               EN

               Official Journal of the European Union

               C 421/43

         Order of the General Court of 30 September 2014 — Bitiqi and Others v Commission and Others
   (Case T-410/13) (1)

   ((Action for annulment - Common Foreign and Security Policy - ‘Rule of law’ mission conducted by the European Union in Kosovo (Eurlex Kosovo) - Decisions of the head of the mission not to renew the employment contracts - Manifest lack of jurisdiction))
   2014/C 421/60
   Language of the case: French

      Parties

      Applicants: Burim Bitiqi (London, United Kingdom); Arlinda Gjebrea (Pristina, Kosovo); Anna Gorska (Warsaw, Poland); Agim Hajdini (London); Josefa Martínez Estéve (Valencia, Spain); Denis Vasile Miron (Bucharest, Romania); James Nicholls (Swindon, United Kingdom); Zornitsa Popova Glodzhani (Varna, Bulgaria); Andrei Mihai Popovici (Bucharest); and Amaia San José Ortiz (Llodio, Spain) (represented: initially by A. Coolen, D. de Abreu Caldas, É. Marchal and J. N. Louis, then by D. de Abreu Caldas, M. de Abreu Caldas and J. N. Louis, avocats)

      Defendants: European Commission (represented by: F. Erlbacher and A. C. Simon, acting as Agents); European External Action Service (EEAS) (represented by: S. Marquardt, É. Chaboureau and M. Silva, acting as Agents); AND Eulex Kosovo (represented by: B. Borchardt, acting as Agent, and by A. Fouquet Dörte, lawyer)

      Intervener in support of the defendants: Council of the European Union (represented by: A. Vitro and M. Bauer, acting as Agents)

      Re:

   Action for annulment of the decisions of the head of the mission ‘Rule of law’ conducted by the European Union in Kosovo (Eulex Kosovo) of 27 May and 2 July 2013 not to renew the applicants’ employment contracts.

      Operative part of the order

               1.

               The action is dismissed.

               2.

               Burim Bitiqi, Arlinda Gjebrea, Anna Gorska, Agim Hajdini, Josefa Martínez Estéve, Denis Vasile Miron, James Nicholls, Zornitsa Popova Glodzhani, Andrei Mihai Popovici, Amaia San José Ortiz are ordered to pay the costs incurred by the European Commission, the European External Action Service (EEAS) and Eulex Kosovo.

               3.

               The Council of the European Union is ordered to bear its own costs.

      (1)  OJ C 325, 9.11.2013.