title: Judgment of the Court of First Instance of 8 July 2003 in Case T-132/01: Euroalliages and Others v Commission of the European Communities (Dumping — Decision terminating expiry review — Community interest — Application for annulment)

text:
C 226/16               EN                         Official Journal of the European Union                                            20.9.2003
                                                        COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                               represented by D. Voillemot and O. Prost, lawyers, supported
                                                                          by the Kingdom of Spain (Agent: L. Fraguas Gadea), against
                         of 17 June 2003                                  Commission of the European Communities (Agents:
                                                                          V. Kreuschitz, S. Meany and A.P. Bentley), supported by TNC
in Case T-385/00 Jean-Paul Seiller v European Investment                  Kazchrome, established in Almaty (Kazakhstan) and by Alloy
                              Bank (1)                                    2000 SA, established in Strassen (Luxembourg), represented by
                                                                          J. Flynn, J. Magnin and S. Mills — application for partial annul-
(European Investment Bank — Staff — Admissibility —                       ment of Commission Decision 2001/230/EC of 21 February
Clarity of the application — Confirmatory act — Action                    2001 terminating the anti-dumping proceeding concerning
brought late — Previous conciliation procedure — Pension                  imports of ferro-silicon originating in Brazil, the People's
rights — Luxembourg law — Settlement — Fraudulent mis-                    Republic of China, Kazakhstan, Russia, Ukraine and
                          representation)                                 Venezuela (OJ 2001 L 84, p. 36) in so far it concerns imports
                                                                          originating in the People's Republic of China, Russia, Ukraine
                         (2003/C 226/32)                                  and Kazakhstan — the Court of First Instance (Second
                                                                          Chamber, Extended Composition), composed of N.J. Forwood,
                   (Language of the case: French)                         President, J. Pirrung, P. Mengozzi, A.W.H. Meij and M. Vilaras,
                                                                          Judges; Registrar: J. Palacio Gonzalez, Principal Administrator,
In Case T-385/00 Jean-Paul Seiller, residing in Luxembourg,               has given a judgment on 8 July 2003, in which it:
represented by D. Chouanier and L. Thielen, lawyers, with
an address for service in Luxembourg, against European
Investment Bank (Agents: E. Uhlmann, C. Gómez de la Cruz                  1.    Dismissed the action;
and P. Mousel) — application for payment of the sum of
LUF 4779652, together with interest, due to him in respect of
his pension rights — the Court of First Instance (Fifth Chamber),         2.    Ordered the applicants to bear their own costs and, jointly and
composed of R. García-Valdecasas, President, and P. Lindh and                   severally, those incurred by the Commission and by the interve-
J.D. Cooke, Judges; D. Christensen, Administrator, for the                      ners TNC Kazchrome and Alloy 2000, including the costs of the
Registrar, has given a judgment on 17 June 2003 in which it:                    interlocutory proceedings;
                                                                          3.    Ordered the Kingdom of Spain, intervener, to bear its own costs.
1.   Dismisses the application;
2.   Orders the applicant to bear his own costs and to pay those
     incurred by the EIB.                                                 (1) OJ No C 227 of 11.8.01.
(1) OJ C 61 of 24 February 2001.
                                                                              JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 17 July 2003
    JUDGMENT OF THE COURT OF FIRST INSTANCE                               in Case T-81/02 Margot Wagemann-Reuter v Court of
                                                                                Auditors of the European Communities (1)
                          of 8 July 2003
                                                                          (Staff case — Leave on personal grounds — Vacant post —
in Case T-132/01: Euroalliages and Others v Commission                                   Upgrading of post — Reinstatement)
               of the European Communities (1)
                                                                                (2003/C 226/34)
(Dumping — Decision terminating expiry review —
      Community interest — Application for annulment)                                           (Language of the case: French)
                         (2003/C 226/33)
                                                                          In Case T-81/02 Margot Wagemann-Reuter, an official of the
                   (Language of the case: French)                         Court of Auditors of the European Communities, residing in
                                                                          Luxembourg, represented by M.-A. Lucas, lawyer, with an
In Case T-132/01: Euroalliages, established in Brussels                   address for service in Luxembourg, against the Court of
(Belgium), Péchiney électrométallurgie, established in                    Auditors of the European Communities (Agents: originally,
Courbevoie (France), Vargön Alloys AB, established in Vargön              J.-M. Stenier, P. Giusta and B. Schäfer, later J.-M. Stenier,
(Sweden), Ferroatlántica, SL, established in Madrid (Spain),              M. Bavendam and I. Riagáin) — application for, first,


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 6 July 1995 in Case T-36/93: Girish Ojha v. Commission of the European Communities (Officials - Posting outside the Community - Reassignment to the seat of the Commission - Action for annulment - Compensation for non-material damage)

text:
No C 229/ 18           EN                  Official Journal of the European Communities                                     2 . 9 . 95
        Removal from the register of Case C-6/95 ( )                  preliminary ruling from the Schleswig-Holsteinisches
                          ( 95/C 229/41 )                             Landessozialgericht ): Aororita Hanßen and Bundesanstalt
                                                                      für Arbeit .
By order of 17 May 1995 the President of the Court of
Justice of the European Communities ordered the removal
from the register of Case C-6/95 ( reference for a                    H OJ No C 54, 4 . 3 . 1995 .
                                                     COURT OF FIRST INSTANCE
 JUDGMENT OF THE COURT OF FIRST INSTANCE                                   ORDER OF THE COURT OF FIRST INSTANCE
                          of 6 July 1995                                                      of 19 June 1995
     in Case T-36/93 : Girish Ojha v. Commission of the               in Case T-107/94 : Christina Kik v. Council of the
                   European Communities f 1 )                         European' Union and Commission of the European
 (Officials — Posting outside the Community —                                                 Communities (*)
Reassignment to the seat of the Commission — Action for                (Regulation (EC) No 40/94 on the Community trade mark
   annulment — Compensation for non-material damage)                     — Languages — Manifest inadmissibility of the action)
                           ( 95/C 229/42 )                                                      ( 95/C 229/43 )
                 (Language of the case: French)                                        (Language of the case: Dutch)
 In Case T-36/93 : Girish Ojha , an official of the Commission
 of the European Communities, residing at Korbeek-Lo                  In Case T-107/94 : Christina Kik, lawyer and trade mark
 ( Belgium ), represented by Jean-Noel Louis, of the Brussels          agent, represented by Goosen L. Kooy, of The Hague Bar,
 Bar, with an address for service in Luxembourg at the office         with an address for service in Luxembourg at the chambers
 of Fiduciaire Myson Sari, 1 Rue Glesener, v. Commission of            of Nicolas Decker, 16 Avenue Marie-Therese, v. Council of
 the European Communities (Agents: Ana Maria Alves                     the European Union ( Agents : Giorgio Maganza and Guus
 Vieira, Joseph Griesmar and Denis Waelbroeck ) —                      Houttuin ) and Commission of the European Communities
 application, first, for the annulment of the decision of the          ( Agent: Pieter Van Nuffel ), supported by Kingdom of Spain
 Commission of 20 October 1992 reassigning the applicant,              ( Agents: Alberto Jose Navarro Gonzalez and Gloria Calvo
 with effect from 1 November 1992, from the Commission's               Diaz ) — application for the annulment of Article 115 of
 delegation in Dacca ( Bangladesh ), where he had been posted          Council Regulation ( EC ) No 40/94 of 20 December 1993 , in
 since August 1991 , to the seat of the Commission in Brussels         that it excludes Dutch as a language of the Office for
 and, second, for an order requiring the Commission to pay             Harmonization in the Internal Market ( trade marks and
 to the applicant the sum of Bfrs 500 000 by way of                    designs ), and for an order prohibiting the adoption of
 compensation for the non-material damage allegedly                    measures enabling the Office to begin its work — the Court
 suffered by him as a result of that decision — the Court of           of First Instance ( First Chamber ), composed of J. L. Cruz
 First Instance ( First Chamber ), composed of J. L. Cruz              Vilaça ( President ) and H. Kirschner and V. Tiili, Judges;
 Vilaça , President, and H. Kirschner and A. Kalogeropoulos,           H. Jung, Registrar, made an order on 19 June 1995 , the
 Judges; H. Jung, Registrar, has given a judgment on 6 July            operative part of which is as follows:
  1995 , in which it:
                                                                        I. the application is dismissed as inadmissible;
  1 . dismisses the application;
                                                                        2 . the applicant is ordered to bear her own costs and to pay
  2 . orders the Commission to bear its own costs and to pay                the costs incurred by the Council and the Commission.
       half of the costs of applicant, who is to bear the other             The intervener is ordered to bear its own costs .
       half.
                                                                        (M OJ No C 120 , 30 . 4 . 1994 .
  (») OJ No C 178 , 30 . 6 . 1993 .


title: Case C-361/15 P: Appeal brought on 11 July 2015 by Easy Sanitary Solutions BV against the judgment of the General Court (Eighth Chamber) delivered on 13 May 2015 in Case T-15/13 Group Nivelles v OHIM — Easy Sanitary Solutions (Shower drainage channel)

text:
               12.10.2015

               EN

               Official Journal of the European Union

               C 337/3

         Appeal brought on 11 July 2015 by Easy Sanitary Solutions BV against the judgment of the General Court (Eighth Chamber) delivered on 13 May 2015 in Case T-15/13 Group Nivelles v OHIM — Easy Sanitary Solutions (Shower drainage channel)

   (Case C-361/15 P)
   (2015/C 337/04)
   Language of the case: Dutch

      Parties

      Appellant: Easy Sanitary Solutions BV (represented by: F. Eijsvogels, advocaat)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Group Nivelles BVBA

      Form of order sought

   The appellant claims that the Court should

               —

               on the basis of the … grounds put forward and the accompanying explanations, set aside in part the judgment of the General Court of 13 May 2015 in Case T-15/13 and order the unsuccessful party to pay the costs.

      Grounds of appeal and main arguments

      Ground 1

   Part (a)
   The General Court infringed Article 25(1)(b) of Regulation No 6/2002 (1), in conjunction with Article 7(1) thereof, in holding that an earlier design which is incorporated in or applied to a product other than that to which a later design relates is in principle relevant to the assessment of the novelty, within the meaning of Article 5 of Regulation No 6/2002, of that later design and that the wording of the latter article would preclude a design from being regarded as new where an identical design has been previously made available to the public, irrespective of the product in which that earlier design has been incorporated or to which it has been applied. The finding of the General Court that the ‘sector concerned’, within the meaning of Article 7(1) of Regulation No 6/2002, is not limited to that of the product in which the contested design is intended to be incorporated or to which it is intended to be applied is incorrect in law.
   Part (b)
   The General Court infringed Article 25(1)(b) of Regulation No 6/2002, in conjunction with Article 5 thereof, in holding that a Community design cannot be regarded as new for the purposes of Article 5(1) of Regulation No 6/2002 if an identical design has been made available to the public before the dates mentioned in that provision, even if that older design was incorporated in or applied to a product other than the product or products indicated in the application pursuant to Article 36(2) of Regulation No 6/2002.
   Part (c)
   The General Court infringed Articles 10, 19 and 36(6) of Regulation No 6/2002 in finding that those articles imply that the holder of a registered design right can prevent third parties not having its consent from using on any sort of product the design which it holds and any design which does not produce on the informed user a different overall impression.

      Ground 2

   In taking the view that the limits of the review of legality had been exceeded, as it did in the last sentence of paragraph 137 of its judgment, the General Court infringed Article 61 of Regulation No 6/2002.

      (1)  Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1).


title: ORDER OF THE COURT (Sixth Chamber) of 30 April 1998 in Joined Cases C-128/97 and C-137/97 (reference for a preliminary ruling from the Pretura Circondariale di Roma, Sezione Disticcata di Tivoli): criminal proceedings against Italia Testa (C-128/97) and Mario Modesti (C-137/97) - intervener: Società Italiana degli Autori ed Editori (SIAE) (Reference for a preliminary ruling - Inadmissibility)

text:
4.7.98                EN                  Official Journal of the European Communities                                  C 209/13
and Dominique Voillemot, of the Paris Bar, with an                   H. Ragnemalm, President of the Chamber, G. F. Mancini,
address for service in Luxembourg at the Chambers of                 P. J. G. Kapteyn (Rapporteur), G. Hirsch and K. M.
Jacques Loesch, 11 Rue Goethe,                                       Ioannou, Judges; G. Cosmas, Advocate General; R. Grass,
                                                                     Registrar, has made an order on 30 April 1998, the
Ð appeal against the judgment of the Court of First                  operative part of which is as follows:
     Instance (Third Chamber, Extended Composition) of
     27 February 1997 in Case T-106/95 FFSA and Others
     v. Commission [1997] ECR II-229, seeking to have                The references for a preliminary ruling made by the
     that judgment set aside, the other party to the                 Pretura Circondariale di Roma, Sezione Disticcata di
     proceedings being the Commission of the European                Tivoli, by orders of 5 February and 19 February 1997, are
     Communities (Agent: GeÂrard Rozet), supported by the            inadmissible.
     French Republic (Agents: Kareen Rispal-Bellanger and
     Jean-Marc Belorgey) and La Poste, a corporation                 (1) OJ C 181 of 14.6.1997.
     governed by French public law, established in
     Boulogne-Billancourt (France), represented by HerveÂ
     Lehman, of the Paris Bar, with an address for service
     in Luxembourg at the Chambers of Aloyse May, 31
     Grand Rue,
Ð the Court (Fourth Chamber), composed of:                           Reference for a preliminary ruling by the Bundesvergabe-
     H. Ragnemalm, President of the Chamber, P. J. G.                amt by order of 3 March 1998 in the case of Alcatel
     Kapteyn (Rapporteur) and J. L. Murray, Judges;                  Austria AG, Stuag Bau-AG, Österreichisches Forschungs-
     A. Saggio, Advocate General; R. Grass, Registrar, has           zentrum Seibersdorf GmbH, Siemens Aktiengesellschaft
     made an order on 25 March 1998, the operative part              Österreich Ð Bietergemeinschaft Ecoroute' and Sag-
     of which is as follows:                                         Schrack Anlagentechnik AG v. Bundesministerium für
                                                                                Wissenschaft und Verkehr
     1. The appeal is dismissed.
                                                                                (Case C-81/98)
     2. The appellants are ordered to pay the costs.
                                                                                (98/C 209/27)
(1) OJ C 199 of 28.6.1997.
                                                                     Reference has been made to the Court of Justice of the
                                                                     European Communities by order of the Bundesvergabeamt
                                                                     (Federal Procurement Office), Austria, of 3 March 1998,
                                                                     received at the Court Registry on 25 March 1998, for a
                  ORDER OF THE COURT                                 preliminary ruling in the case of Alcatel Austria AG, Stuag
                                                                     Bau-AG, Österreichisches Forschungszentrum Seibersdorf
                       (Sixth Chamber)                               GmbH, Siemens Aktiengesellschaft Österreich Ð Bieter-
                       of 30 April 1998                              gemeinschaft Ecoroute' and Sag-Schrack Anlagentechnik
                                                                     AG v. Bundesministerium für Wissenschaft und Verkehr
in Joined Cases C-128/97 and C-137/97 (reference for a
                                                                     (Federal Ministry for Science and Transport) on the
preliminary ruling from the Pretura Circondariale di
                                                                     following questions:
Roma, Sezione Disticcata di Tivoli): criminal proceedings
against Italia Testa (C-128/97) and Mario Modesti
(C-137/97) Ð intervener: SocietaÁ Italiana degli Autori ed
                                                                     A. When implementing Directive 89/665/EEC (1), are
                       Editori (SIAE) (1)
                                                                         Member States required by Article 2(6) thereof to
    (Reference for a preliminary ruling Ð Inadmissibility)               ensure that the contracting authority's decision prior
                                                                         to the conclusion of the contract as to the bidder in a
                         (98/C 209/26)
                                                                         tender procedure with which, in the light of the
                                                                         procedure's results, it will conclude the contract (i. e.
                (Language of the case: Italian)
                                                                         the award decision) is in any event open to a
                                                                         procedure whereby an applicant may have that
  (Provisional translation; the definitive translation will be           decision annulled if the relevant conditions are met,
          published in the European Court Reports)                       notwithstanding the possibility once the contract has
                                                                         been concluded of restricting the legal effects of the
In Joined Cases C-128/97 and C-137/97: reference to the                  review procedure to an award of damages?
Court under Article 177 of the EC Treaty from the
Pretura Circondariale di Roma, Sezione Disticcata di
Tivoli, for a preliminary ruling in the criminal proceedings         B. If Question A is answered in the affirmative:
pending before that court against Italia Testa (C-128/97)
and Mario Modesti (C-137/97) Ð intervener: SocietaÁ
Italiana degli Autori ed Editori (SIAE) Ð on the                         Is the obligation described under A. sufficiently clear
interpretation of Articles 30, 36, 85 and 86 of the EC                   and precise to confer on individuals the right to a
Treaty in the light of national rules relating to copyright              review corresponding to the requirements of Article 1
management Ð the Court (Sixth Chamber), composed of                      of Directive 89/665/EEC, in which the national court


title: Case C-118/03: Action brought on 17 March 2003 by the Commission of the European Communities against the Federal Republic of Germany

text:
10.5.2003               EN                          Official Journal of the European Union                                        C 112/17
Pleas in law and main arguments                                             Action brought on 17 March 2003 by the Commission of
                                                                            the European Communities against the Federal Republic
                                                                                of Germany
France was required to transpose and apply the provision
referred to in the application with effect from 1 January 2000.                                       (Case C-118/03)
It appears from the replies submitted of the French authorities
that, with the exception of numbers which are free of                                                 (2003/C 112/29)
charge (‘freephone numbers’) and of shared-cost numbers, the
remaining non-geographic numbers are not covered by the
measures which have been established.
                                                                            An action against the Federal Republic of Germany was
                                                                            brought before the Court of Justice of the European Communi-
( 1) Directive 97/33/EC of the European Parliament and of the Council       ties on 17 March 2003 by the Commission of the European
     of 30 June 1997 on interconnection in Telecommunications with          Communities, represented by Ulrich Wölker, legal advisor, and
     regard to ensuring universal service and interoperability through      Hans Støvlbæk, of its legal service, with an address for service
     application of the principles of Open Network Provision (ONP)          in Luxembourg.
     — OJ L 199, 26.7.1997, p. 32.
( 2) OJ L 268, 3.10.1998, p. 37.
                                                                            The applicant claims that the Court should:
                                                                            1.    Declare that by failing to adopt the laws, regulations
                                                                                and administrative provisions necessary to implement
                                                                                Commission Directive 2000/37/EC ( 1) of 5 June 2000
                                                                                amending Chapter VIa ‘Pharmacovigilance’ of Council
                                                                                Directive 81/851/EEC on the approximation of the laws
                                                                                of the Member States relating to veterinary medicinal
                                                                                products or by failing to inform the Commission of those
Reference for a preliminary ruling by the Tribunale di                            provisions, the Federal Republic of Germany has failed to
Genova — Prima sezione civile by order of that Court of                           fulfil its obligations under that directive;
10 March 2003 in the civil proceedings brought by
Eco Eridania S.r.l. against Ministero dell’Ambiente and
                                                                            2.    Order the Federal Republic of Germany to pay the costs.
              Presidenza del Consiglio dei Ministri
                          (Case C-115/03)
                                                                            Pleas in law and main arguments
                          (2003/C 112/28)                                   The period for implementing the directive expired on 5 Decem-
                                                                            ber 2001.
                                                                            (1 ) OJ L 139, 10.6.2000, p. 25.
Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale di Genova
— Prima sezione civile (Genoa District Court, First Civil
Chamber) of 10 March 2003, received at the Court Registry
on 17 March 2003, for a preliminary ruling in the civil
proceedings brought by Eco Eridania S.r.l. against Ministero
dell’Ambiente and Presidenza del Consiglio dei Ministri on the
following question:                                                         Action brought on 18 March 2003 by the Commission of
                                                                             the European Communities against the French Republic
Does the obligation under Article 4 of Directive 91/689/                                              (Case C-119/03)
EEC ( 1) apply to all producers of hazardous waste (including
dental surgeons’ practices) or merely to producers of hazardous
                                                                                (2003/C 112/30)
waste whose business is organised in the form of an undertak-
ing or institution?
                                                                            An action against the French Republic was brought before the
( 1) OJ L 377 of 31.12.1991, p. 20.                                         Court of Justice of the European Communities on 18 March
                                                                            2003 by the Commission of the European Communities,
                                                                            represented by G. Rozet, acting as Agent, with an address for
                                                                            service in Luxembourg.


title: Judgment of the Court of First Instance of 19 July 1999 in Case T-74/98: Luciano Mammarella v Commission of the European Communities (Official - Social security - Invalidity pension - Outside contractor bound by contract to the institution - Works contract systematically renewed)

text:
C 281/14              EN                       Official Journal of the European Communities                                     2.10.1999
    JUDGMENT OF THE COURT OF FIRST INSTANCE                               decision refusing to grant the applicant the benefits provided
                                                                          for by the Staff Regulations of officials in respect of partial
                         of 19 July 1999                                  permanent invalidity resulting from an accident suffered by
                                                                          him when he was contractually bound to the institution as an
                                                                          outside contractor and, in the alternative, for damages — the
  in Case T-20/98: Q v Council of the European Union (1)                  Court of First Instance (Third Chamber), composed of M. Jae-
                                                                          ger, President, and K. Lenaerts and J. Azizi, Judges; A. Mair,
(Officials — Actions for annulment — Recovery of sums                     Administrator, for the Registrar, has given a judgment on
overpaid — Article 23 of Annex X to the Staff Regulations)                19 July 1999, in which it:
                                                                          1. Dismisses the application;
                        (1999/C 281/26)
                                                                          2. Orders the parties to bear their own costs.
                   (Language of the case: French)
                                                                          (1) OJ C 209 of 4.7.1998.
In Case T-20/98: Q, an official of the Council of the European
Union, represented by Jean-Noël Louis, Ariane Tornel and
Françoise Parmentier, of the Brussels Bar, with an address for
service in Luxembourg at Fiduciaire Myson S.à r.l., 30 Rue de
Cessange, against Council of the European Union (Agents:
Martin Bauer and Denis Waelbroeck) — application for
annulment of the decisions of the Council of 12 March and
13 June 1997 ordering the applicant to repay sums overpaid                    JUDGMENT OF THE COURT OF FIRST INSTANCE
by way of accommodation expenses to which are entitled
members of staff posted to non-Member States — the Court                                            of 8 July 1999
of First Instance (First Chamber), composed of B. Vesterdorf,
President, J. Pirrung and M. Vilaras, Judges; H. Jung, Registrar,         in Case T-163/98: The Procter & Gamble Company v
gave a judgment on 19 July 1999, in which it:                             Office for Harmonisation in the Internal Market (Trade
                                                                                Marks and Designs) (1)
1. Dismisses the application.
                                                                          (Community mark — Term ‘Baby-Dry’ — Absolute ground
2. Orders the parties to bear their own costs.
                                                                          for refusal — Extent of review by the Boards of Appeal —
                                                                                Extent of review by the Court of First Instance)
(1) OJ 1998 C 94.
                                                                                (1999/C 281/28)
                                                                                (Language of the case: French)
                                                                          In Case T-163/98: The Procter & Gamble Company, having its
                                                                          registered office at Cincinnati, Ohio (United States of America),
    JUDGMENT OF THE COURT OF FIRST INSTANCE                               represented by Thierry van Innis, of the Brussels Bar, with an
                                                                          address for service in Luxembourg at the Chambers of
                         of 19 July 1999                                  Katia Manhaeve, 56-58 rue Charles Martel v Office for
                                                                          Harmonisation in the Internal Market (Trade Marks and
in Case T-74/98: Luciano Mammarella v Commission of                       Designs) (Agents: Oreste Montalto and Fernando López de
                 the European Communities (1)                             Rego) — appeal against the decision of the First Board of
                                                                          Appeal of the Office for Harmonisation in the Internal
                                                                          Market (Trade Marks and Designs) of 31 July 1998 (Case R
(Official — Social security — Invalidity pension — Outside                35/1998-1), which was notified to the applicant on 7 August
contractor bound by contract to the institution — Works                   1998 — the Court of First Instance (Second Chamber),
                contract systematically renewed)                          composed of: A. Potocki, President, C.W. Bellamy and
                                                                          A.W.H. Meij, Judges; H. Jung, Registrar, has given a judgment
                        (1999/C 281/27)                                   on 8 July 1999, in which it held:
                                                                          1. The decision of the First Board of Appeal of the Office for
                   (Language of the case: Italian)                             Harmonisation in the Internal Market (Trade Marks and
                                                                               Designs) of 31 July 1998 (Case R 35/1998-1) is annulled.
In Case T-74/98: Luciano Mammarella, an official of the
                                                                          2. The parties shall bear their own costs.
Commission, residing at Biandronno (Italy), represented by
Giuseppe Marchesini, of the Vicenza Bar, with an address for
service in Luxembourg at the Chambers of Ernest Arendt,                   (1) OJ C 1 of 4.1.1999.
8-10 Rue Mathias Hardt, v Commission of the European
Communities (Agents: Gianluigi Valsesia and Alberto Dal
Ferro) — application for annulment of the Commission’s


title: JUDGMENT OF THE COURT (First Chamber) of 29 September 1998 in Case C-263/97 (reference for a preliminary ruling from the High Court of Justice, Queen's Bench Division): The Queen v. Intervention Board for Agricultural Produce, ex parte First City Trading Ltd and Others (Agriculture - Common organisation of the markets - Beef - Export refunds - Beef of British origin repatriated to the United Kingdom as a result of the announcements and decisions made in relation to 'mad cow disease' - Force majeure)

text:
C 340/6               EN                  Official Journal of the European Communities                                    7.11.98
Rühl, and subsequently D. Louterman-Hubeau, Principal                H. Ragnemalm, M. Wathelet and R. Schintgen (Presidents
Administrators, for the Registrar, has given a judgment on           of Chambers), P. J. G. Kapteyn, J. L. Murray, D. A. O.
29 September 1998, in which it:                                      Edward, G. Hirsch, P. Jann and L. Sevón, Judges; F. G.
                                                                     Jacobs, Advocate General; H. von Holstein, Deputy
                                                                     Registrar, for the Registrar, has given a judgment on
1. dismisses the pleas of inadmissibility;                           29 September 1998, in which it has ruled:
2. declares that, by failing to provide for appropriate              1. On a proper construction of Article 4(1)(b) of First
     penalties in cases where companies limited by shares                Council Directive 89/104/EEC of 21 December 1988
     fail to effect compulsory disclosure of their annual                to approximate the laws of the Member States relating
     accounts as prescribed, in particular, by Article 2(1)(f),          to trade marks, the distinctive character of the earlier
     and Articles 3 and 6 of the First Council Directive                 trade mark, and in particular its reputation, must be
     68/151/EEC of 9 March 1968 on coordination of                       taken into account when determining whether the
     safeguards which, for the protection of the interests of            similarity between the goods or services covered by the
     members and others are required by Member States                    two trade marks is sufficient to give rise to the
     of companies within the meaning of the second                       likelihood of confusion.
     paragraph of Article 58 of the Treaty, with a view to
     making such safeguards equivalent throughout the
     Community, in conjunction with Article 47(1) of the             2. There may be a likelihood of confusion within the
     Fourth Council Directive 78/660/EEC of 25 July 1978                 meaning of Article 4(1)(b) of Directive 89/104/EEC
     based on Article 54(3)(g) of the Treaty on the annual               even where the public perception is that the goods or
     accounts of certain types of companies, the Federal                 services have different places of production. By
     Republic of Germany has failed to fulfil its obligations            contrast, there can be no such likelihood where it does
     under those directives;                                             not appear that the public could believe that the goods
                                                                         or services come from the same undertaking or, as the
                                                                         case may be, from economically-linked undertakings.
3. orders the Federal Republic of Germany to pay the
     costs.                                                          (1) OJ C 94 of 22.3.1997.
(1) OJ C 208 of 12.8.1995.
                                                                                JUDGMENT OF THE COURT
                                                                                (First Chamber)
               JUDGMENT OF THE COURT
                                                                                of 29 September 1998
                    of 29 September 1998
                                                                     in Case C-263/97 (reference for a preliminary ruling from
in Case C-39/97 (reference for a preliminary ruling from             the High Court of Justice, Queen's Bench Division): The
the Bundesgerichtshof): Canon Kabushiki Kaisha v.                    Queen v. Intervention Board for Agricultural Produce, ex
                Metro-Goldwyn-Mayer Inc. (1)                                  parte First City Trading Ltd and Others (1)
(Trade mark law Ð Likelihood of confusion Ð Similarity               (Agriculture Ð Common organisation of the markets Ð
                     of goods or services)                           Beef Ð Export refunds Ð Beef of British origin
                        (98/C 340/10)                                repatriated to the United Kingdom as a result of the
                                                                     announcements and decisions made in relation to mad
                                                                                cow disease' Ð Force majeure)
               (Language of the case: German)
                                                                                (98/C 340/11)
  (Provisional translation; the definitive translation will be                      (Language of the case: English)
          published in the European Court Reports)
                                                                     In Case C-263/97: reference to the Court under Article 177
In Case C-39/97: reference to the Court under Article 177            of the EC Treaty by the High Court of Justice, Queen's
of the EC Treaty from the Bundesgerichtshof (Federal                 Bench Division (England and Wales), for a preliminary
Court of Justice) (Germany), for a preliminary ruling in             ruling in the proceedings pending before that court
the proceedings pending before that court between Canon              between The Queen and Intervention Board for
Kabushiki Kaisha and Metro-Goldwyn-Mayer Inc.,                       Agricultural Produce, ex parte First City Trading Ltd and
formerly Pathe Communications Corporation Ð on the                   Others, on the interpretation of Articles 23 and 33
interpretation of Article 4(1)(b) of First Council Directive         of Commission Regulation (EEC) No 3665/87 of
89/104/EEC of 21 December 1988 to approximate the                    27 November 1987 laying down common detailed rules
laws of the Member States relating to trade marks (OJ                for the application of the system of export refunds on
L 40 of 11.2.1989, p. 1) Ð the Court, composed of: G. C.             agricultural products (OJ L 351 of 14.12.1987, p. 1) and
Rodríguez Iglesias, President, C. Gulmann (Rapporteur),              on the validity of Commission Decision 96/239/EC of
 ---pagebreak--- 7.11.98               EN                  Official Journal of the European Communities                                      C 340/7
27 March 1996 on emergency measures to protect against               3. Consideration of question 4 has not disclosed any
bovine spongiform encephalopathy (OJ L 78 of 28.3.1996,                   factor of such a kind as to affect the validity of
p. 47) and of Commission Regulation (EC) No 773/96 of                     Decison 96/239/EC.
26 April 1996 laying down special measures derogating
from Regulations (EEC) No 3665/87, (EEC) No 3719/88
and (EEC) No 1964/82 in the beef and veal sector (OJ                      Commission Regulation (EC) No 773/96 of 26 April
L 104 of 27.4.1996, p. 19) Ð the Court (First Chamber),                   1996 laying down special measures derogating from
composed of: M. Wathelet, President of Chamber, P. Jann                   Regulations (EEC) No 3665/87, (EEC) No 3719/88
and L. Sevón (Rapporteur), Judges; N. Fennelly, Advocate                  and (EEC) No 1964/82 in the beef and veal sector is
General; L. Hewlett, Administrator, for the Registrar, has                not rendered invalid by the fact that it prohibits
given a judgment on 29 September 1998, in which it has                    exporters, in the circumstances described in the answer
ruled:                                                                    to the second question, from retaining all or part of
                                                                          any export refunds paid in advance.
1. Articles 23 and 33 of Commission Regulation (EEC)                 (1) OJ C 295 of 27.9.1997.
    No 3665/87 of 27 November 1987 laying down
    common detailed rules for the application of the
    system of export refunds on agricultural products, in
    the version thereof resulting from Commission
    Regulation (EEC) No 1615/90, must be interpreted as
    meaning that where, as a result of, in particular, force
    majeure, goods do not reach their country of                                    JUDGMENT OF THE COURT
    destination but are repatriated to the Member State of                                  (Sixth Chamber)
    export, the exporter is obliged to repay any export
    refunds paid in advance.                                                               of 1 October 1998
                                                                     in    Case   C-285/96: Commission of the             European
2. Regulation (EEC) No 3665/87 does not contravene                                Communities v. Italian Republic (1)
    the general principles of Community law, in particular           (Failure by a Member State to fulfil its obligations Ð
    the principles of force majeure, the protection of               Non-transposition of Directive 76/464/EEC Ð Judgment
    legitimate expectations, proportionality or equity, by                                      by default)
    prohibiting exporters of beef from the United
    Kingdom from retaining all or part of any export                                          (98/C 340/12)
    refunds paid in advance in circumstances where:
                                                                                (Language of the case: Italian)
    a) exports of beef from the United Kingdom to third
        countries have been prohibited by Commission
        Decision 96/239/EC of 27 March 1996 on                         (Provisional translation; the definitive translation will be
        emergency measures to protect against bovine                           published in the European Court Reports)
        spongiform encephalopathy;
                                                                     In Case C-285/96: Commission of the European
    b) bans on the importation of beef from the United               Communities (Agents: Götz zur Hausen and Paolo
        Kingdom have also been imposed by a number of                Stancanelli) v. Italian Republic Ð application for a
        third countries;                                             declaration that, by failing to adopt pollution reduction
                                                                     programmes with quality objectives for 99 dangerous
    c) exporters of beef were in the process of carrying             substances set out in List I of the Annex, alternatively by
        goods to third countries on the date on which                failing to communicate to the Commission summaries of
        Decision 96/239/EC was adopted;                              those programmes and the results of their implementation,
                                                                     contrary to Article 7 of Council Directive 76/464/EEC of
                                                                     4 May 1976 on pollution caused by certain dangerous
    d) those exporters were forced to repatriate the beef            substances discharged into the aquatic environment of the
        to the United Kingdom;                                       Community (OJ L 129 of 18.5.1976, p. 23), and by
                                                                     failing to provide the relevant information requested in
    e) the exporters had received, in accordance with                breach of Article 5 of the EC Treaty, the Italian Republic
        Council Regulation (EEC) No 565/80 of 4 March                has failed to fulfil its obligations under the EC Treaty Ð
        1980 on the advance payment of export refunds in             the Court (Sixth Chamber), composed of: H. Ragnemalm,
        respect of agricultural products and Commission              President of the Chamber, R. Schintgen, G. F. Mancini,
        Regulation (EEC) No 3665/87, advance payments                P. J. G. Kapteyn and G. Hirsch (Rapporteur), Judges; J.
        of export refunds in respect of the export                   Mischo, Advocate General; R. Grass, Registrar, has given
        transactions at issue; and                                   a judgment on 1 October 1998, in which it:
    f) the exporters suffered loss as a result of their              1. declares that, by failing to adopt pollution reduction
        inability to sell their beef on the export markets in             programmes with quality objectives for 99 dangerous
        question.                                                         substances set out in List I of the Annex to Council


title: Case T-381/03: Action brought on 14 November 2003 by Izar Construcciones Navales SA against Commission of the European Communities

text:
24.1.2004              EN                         Official Journal of the European Union                                           C 21/41
Action brought on 20 November 2003 by Korn-OG                             —    The Commission must accept liability for the recipient
Foderstof Kompagniet against the Commission of the                             country’s fault on contractual principles, since it used the
                     European Communities                                      recipient country for taking delivery. The delay is there-
                                                                               fore within its sphere of responsibility. The Commission
                                                                               has in principle recognised the applicant’s entitlement to
                          (Case T-380/03)                                      compensation.
                           (2004/C 21/84)
                                                                          —    The basis of the applicant’s claim in respect of delay is
                                                                               the wrongful declaration that the security deposited by
                   (Language of the case: German)                              the applicant was forfeit. The Commission fulfilled its
                                                                               obligations towards the applicant only after a year had
                                                                               elapsed. Admittedly, the applicant did not have direct
                                                                               contact in this regard with the Commission, but the
An action against the Commission of the European Communi-                      national payments office, the Bundesanstalt für Landwirt-
ties was brought before the Court of First Instance on                         schaft und Ernährung, acted in this respect merely as the
20 November 2003 by Korn-OG Foderstof Kompagniet, of                           payments office of the Commission.
Viby (Denmark), represented by L. Harings and K. Landry,
lawyers, with an address for service in Luxembourg.
The applicant claims that the Court should:
1.    order the defendant to pay to the applicant:
      —     82 702,12 EUR
      —     10 394,00 USD, together with interest at the rate of          Action brought on 14 November 2003 by Izar Construc-
            5 % above the applicable Danish minimum lending               ciones Navales SA against Commission of the European
            rate from 1 November 1999, or alternatively since                                      Communities
            the lodging of the application, and
      —     828,73 USD;                                                                          (Case T-381/03)
2.    order the defendant, in accordance with Article 87(2) of
      the Rules of Procedure of the Court, to pay the applicant’s
                                                                                (2004/C 21/85)
      costs.
                                                                                (Language of the case: Spanish)
Pleas in law and main arguments
The applicant’s claim for compensation from the Commission
is brought under Article 238 EC and concerns a contract for
the supply of rye for breadmaking to the Russian Federation.              An action against the Commission of the European Communi-
In addition, it makes a claim on account of delay.                        ties was brought before the Court of First Instance of the
                                                                          European Communities on 14 November 2003 by Izar
                                                                          Construcciones Navales SA, whose registered office is at
                                                                          Madrid, represented by Jaime Folguera Crespo, Edurne Navarro
The applicant’s arguments are as follows:
                                                                          Varona and Alfonso Gutiérrez Hernández, lawyers.
—     It was awarded a contract for delivery of rye for bread-
      making to the Russian Federation in accordance with
      Regulation (EC) No 111/1999. It has suffered consider-              The applicant claims that the Court should:
      able damage due to the unwarranted delay in the
      acceptance of the delivery by the recipient country. The
      delay arose because the Russian Federation complained               —    Annul, pursuant to Article 230 of the EC Treaty, the
      initially of defects in the goods delivered. However, after              decision of the Commission of 27 May 2003 on the
      closer investigation by the Commission, no such defects                  suspected aid granted to the Spanish State shipyards, and
      were found. The applicant had to fund the sums paid to
      the Bundesanstalt für Landwirtschaft und Ernährung in
      Deutschland (BLE, German Federal Institute for Agri-                —    Order the Commission to pay the costs incurred by IZAR
      culture and Food) for a period of approximately one year.                in these proceedings.
 ---pagebreak--- C 21/42                EN                          Official Journal of the European Union                                          24.1.2004
Pleas in law and main arguments                                                  incompatible with the common market merely because it
                                                                                constitutes aid in addition to that authorised for the
                                                                                Spanish shipyards by the aforementioned 1997 decision.
The applicant in this case, a subsidiary of the Spanish public             Finally, the applicant alleges breach of the principle of
holding headed by the Sociedad Estatal de Participaciones                  proportionality and of the duty to state reasons for acts, in
Industriales (SEPI), which owns all the Spanish shipyards                  particular as regards, in the present case, the existence of State
belonging to the State, challenges the decision by which the               aid.
defendant institution has initiated the formal investigation
procedure under Article 88(2) of the EC Treaty with regard to
three cases of alleged aid consisting in the grant by SEPI to the          (1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
civil shipyards in Cádiz and Juliana and to the Manises engines                down detailed rules for the application of Article 93 of the EC
factory of loans amounting to EUR 194.4 million, a capital                     Treaty, OJ 1999 L 83, p. 1.
injection from SEPI to AESA (Astilleros Españoles SA) of                   (2) Council Regulation (EC) No 1013/97 of 2 June 1997 on aid to
EUR 252.4 million and compensation for losses paid by SEPI                     certain shipyards under restructuring, OJ 1997 L 148 , p. 1.
to the shipyards in Cádiz and Juliana and to the Manises
engines factory amounting to EUR 68.2 million. The same
decision also questions, according to the applicant, whether
certain aid authorised in 1997 in the same sector, in relation
to which the abovementioned aid ought to be considered
additional aid, is compatible with Community law.
                                                                           Action brought on 17 November 2003 by Izar Construc-
                                                                           ciones Navales SA against Commission of the European
In support of its claims, the applicant alleges:                                                      Communities
                                                                                (Case T-382/03)
—     Infringement of Article 88 of the EC Treaty and of
      Regulations 659/1999 (1) and 1013/1997 (2), inasmuch
      as the contested decision, using as its legal basis Article 16                                 (2004/C 21/86)
      of Regulation No 659/1999, states that, were the aid
      authorised in 1997 to be considered illegal, steps must                                 (Language of the case: Spanish)
      be taken for its recovery. The applicant submits in that
      respect that the Commission has unlawfully failed to
      apply to the aid in issue the procedure for existing aid
      provided for by Article 88(1) and Article 17 et seq of
      Regulation No 659/1999.                                              An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
                                                                           European Communities on 17 November 2003 by Izar
                                                                           Construcciones Navales SA, whose registered office is at
—     Breach of the principle that legitimate expectations must            Madrid, represented by Jaime Folguera Crespo, Edurne Navarro
      be protected, inasmuch as the contested decision does                Varona and Alfonso Gutiérrez Hernández, lawyers.
      not meet the applicant’s expectations regarding the
      legality and irrevocability of the aid authorised in 1997.
                                                                           The applicant claims that the Court should:
—     Breach of the principle of legal certainty as a result of            —     Annul, pursuant to Article 230 of the EC Treaty, the
      the Commission’s having acted out of time and the                          decision of the Commission of 27 July 2003 on the
      retrospective application of a provision to a situation                    suspected aid granted to the Spanish State shipyards, and
      arising prior to its entry into force. In the view of the
      applicant, the power to recover the 1997 aid could only
      have been exercised within the period prescribed therefor,           —     Order the Commission to pay the costs incurred by IZAR
      that is to say before October 1999. That is so because                     in these proceedings.
      exercise of the abovementioned power is contingent on
      the result of the monitoring programmes provided for by
      Regulation No 1013/1997 and the 1997 decision, which
      came to an end on the abovementioned date.                           Pleas in law and main arguments
—     Manifest error of law, inasmuch as the contested decision            The applicant in this case, the same as that in Case T-381/03
      maintains that the alleged aid concerned thereby is                  IZAR, challenges the decision of the defendant by which it:


title: Case C-338/00 P: Appeal brought on 14 September 2000 by Volkswagen AG against the judgment delivered on 6 July 2000 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-62/98 between Volkswagen AG and the Commission

text:
25.11.2000             EN                    Official Journal of the European Communities                                         C 335/33
3.    Are farmers who apply for aid under that programme                2.    order the Commission to pay the appellant’s costs of the
      also to be regarded as persons to whom the decision is                  proceedings before the Court of First Instance and the
      addressed and is the form of the notification chosen in                 Court of Justice.
      that regard, in particular the obligation on the Member
      States to provide farmers with appropriate information,
      sufficient to make the decision binding on those farmers
      and any conflicting contracts granting support ineffec-           Pleas in law and main arguments
      tive?
                                                                        —     Infringements of          Article 81(1)    EC     (previously
4.    May a farmer in this instance, irrespective of the content              Article 85(1) EC):
      of the programme within the meaning of Regulation
      No 2078/92 approved by the Commission, rely on the                      —     The Court of First Instance wrongly regards the
      statements of the administrative bodies of the Member                         restricting of the bonus for sales outside the contract
      States so that a claim for recovery is precluded?                             territory to a maximum of 15 % of overall sales as
                                                                                incompatible with Article 81(1) EC. A dealer who
5.    Are the Member States free under Regulation No 2078/92                        sells a vehicle in a territory which does not belong
      to implement programmes within the meaning of that                            to his contract territory has in general substantially
      regulation either by private-sector measures (contracts)                      fewer expenses in respect of the sale as such and
      or by forms of State action?                                                  post-sales service than in the case of a sale in his
                                                                                own contract territory. The disadvantage in terms
6.    In assessing whether restrictions on the possibilities of                     of bonus therefore corresponds to an economic
      claiming recovery on grounds of the protection of                             advantage and the bonus rules therefore had no
      legitimate expectations and legal certainty accord with                       anti-competitive ‘object’ and no restrictive ‘effect’ on
      the interests of Community law, is only the respective                        competition. Contrary to the view of the Court of
      form of action to be taken into account or also the                           First Instance, the 15 % rule was in any event
      possibilities of claiming recovery which exist in other                       exempted through Regulation 123/85 in accordance
      forms of action and particularly favour the Community                         with Article 81(3) EC. It reflects the particular
      interests?                                                                    responsibility which a dealer bears for his own
                                                                                contract territory.
                                                                              —     The ‘restrictions in supply’ to the Italian market,
                                                                                which the Court of First Instance took into account,
                                                                                does not fall within the scope of the prohibition on
                                                                                cartels in Article 81(1) EC, since it is a unilateral
                                                                                measure. The restrictions found by the Court were
Appeal brought on 14 September 2000 by Volkswagen                                   not in any event intended by the dealers and, if such
AG against the judgment delivered on 6 July 2000 by the                             restrictions existed, they were of a unilateral nature.
Fourth Chamber of the Court of First Instance of the
European Communities in Case T-62/98 between Volks-                     —     Infringements of Regulation No 17:
                wagen AG and the Commission
                                                                              —     The taking into account of the 15 % bonus rule
                        (Case C-338/00 P)                                           when setting the fine infringes Article 15(5)(a) of
                                                                                Regulation No 17: when the 1985 version of Regu-
                         (2000/C 335/58)                                            lation No 27 applied, there was no specific form
                                                                                in which the Commission was to be notified of
                                                                                subsequent amendments to notified agreements and,
An appeal against the judgment delivered on 6 July 2000 by                          as a result of ‘Complementary Note’ VI, first para-
the Fourth Chamber of the Court of First Instance of the                            graph, a communication in any form to the Com-
European Communities in Case T-62/98 between Volkswagen                             mission had the legal quality of a notification.
AG and the Commission has been brought before the Court of
Justice of the European Communities on 14 September 2000
by Volkswagen AG, represented by Professor Dr. Rainer                         —     The Court’s findings as to the intentional nature of
Bechtold, Gleiss Lutz Hootz Hirsch, Stuttgart, with an address                      the infringement do not satisfy the requirements of
for service in Luxembourg at the chambers of De Bandt, Van                          Article 15(2) of Regulation No 17: that provision
Hecke, Lagae and Loesch, 4 Rue Carlo Hemmer, 1011                                   requires a precise finding as to which persons acted
Luxembourg.                                                                         in which capacity, why that action is to be attributed
                                                                                to the appellant, and that the elements of fault are
                                                                                also to be attributed to the appellant. Even in the
The appellant claims that the Court should:                                         case of legal persons the existence of fault on their
                                                                                part must, in truth, depend on the acts of the natural
1.    set aside the judgment of the Court of First Instance                         persons in each case. Even if it were to be argued
      (Fourth Chamber) of 6 July 2000 in Case T-62/98 (1) and                       that an undertaking is liable for the conduct of all
      declare void the Commission Decision of 28 January                            persons who act in its sphere of activity and
      1998 (Case IV/35.733 — VW),                                                   responsibility, there must at least be a finding that
 ---pagebreak--- C 335/34                EN                    Official Journal of the European Communities                                       25.11.2000
            the persons who acted were at fault (intention or            Action brought on 15 September 2000 by Ireland against
            negligence). The mere finding of objectively illegal                the Commission of the European Communities
            acts by individual employees in conjunction with a
            statement, concerning other employees, that the
            appellant acted intentionally in that regard, does not                                (Case C-339/00)
            satisfy the requirements of the fault principle, which
            must be observed also in EC Competition Law.
                                                                                (2000/C 335/59)
—    Infringements of procedural principles:                             An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of Justice of the European
                                                                         Communities on 15 September 2000 by Ireland, represented
     —      The Court based its decision on facts that differed          by Mr David J. O’Hagan, Chief State Solicitor, acting as agent,
            from those which were the subject of the Com-                assisted by Mr Rory Brady, Senior Counsel and Mr Anthony
            mission’s decision: In its decision the Commission           M. Collins, Barrister at Law, of the Bar of Ireland, with an
            grounded the infringement of Article 81 EC upon a            address for service in Luxembourg at the Embassy of Ireland,
            bundle of measures which it characterised as a single        28, route d’Arlon.
            ‘infringement’. The Court did not confirm the facts
            relating to ‘2. Margins policy’ and to ‘6. Termination
            of Contracts’, nor, therefore, the single ‘overall           The Applicant claims that the Court should:
            strategy’ which the Commission alleged to consist
            of 7 elements. Even if, in the Court’s view, the
            remaining individual measures, even viewed in iso-           a)    annul the decision contained in Commission Decision of
            lation, infringed Article 81(1) EC, it was not entitled            5 July 2000 (1) notified under document number C(2000)
            to substitute a different set of fact and then to                  1847 to exclude from Community financing
            assume that the Commission would have adopted                      EUR 4 844 345,35 in afforestation aid paid by Ireland
            the decision in that case too.                                     under the Guarantee Section of the European Agricultural
                                                                               Guidance and Guarantee Fund (EAGGF) for the years
                                                                               1997 and 1998;
     —      The Court failed to observe the principle of the right
            to a fair hearing, as it assessed, to the detriment of       b)    order the Commission to pay the costs of these proceed-
            the appellant, consumer complaints on which it had                 ings.
            not been able to express its views during the
            administrative procedure.
                                                                         Pleas in law and main arguments
     —      The Commission’s decision contains an inadequate
            statement of reasons and is therefore unlawful.
                                                                         The decision impugned purports to have legal basis in
                                                                         Council Regulation 729/70 (2). That regulation is incapable of
     —      The Court did not fulfil its duty to state reasons in        providing a legal basis because, at the date of adoption of the
            regard to the fine set by it.                                decision (5 July 2000), it had been repealed in its entirety by
                                                                         Article 16.1 of Council Regulation 1258/1999 of 17 May
                                                                         1999 (3) which entered into force on 3 July 1999. In the
                                                                         absence of a legal basis upon which it could have been
     —      The premature disclosure of the proposed decision            adopted, it is submitted that the Commission lacked the power
            by the Commissioner responsible for competition              to make the decision.
            matters renders the decision unlawful in any event.
            An undertaking in the appellant’s situation is never
            in a position — as the Court of First Instance               Should the Commission be able to satisfy the Court that the
            demands — to be able to prove that the decision
                                                                         decision challenged in these proceedings is lawful, Ireland
            would have been different if the Commission had
                                                                         submits that it ought to be annulled by reference to any, or
            acted in accordance with the rules.                          indeed to all, of the following grounds:
                                                                         a)    Coillte Teoranta is a ‘private-law, natural or legal person’
(1) Not yet published in the ECR.                                              for the purposes of Article 2(2)(b) of Regulation (EEC)
                                                                               No 2080/92 (4), and is therefore entitled to receive aid;
                                                                         b)    Coillte Teoranta is not a ‘public authority’ for the purposes
                                                                               of Regulation (EEC) No 2080/92. It is a body incorporated
                                                                               under the Companies Acts and is therefore a ‘private-law
                                                                               legal person’, albeit one owned by the State or its agents;


title: Case F-123/06: Order of the Civil Service Tribunal of 5 June 2008 — Timmer v Court of Auditors (Staff — Officials — Assessment — Time-limit for lodging a complaint — New fact — Inadmissibility)

text:
               30.8.2008

               EN

               Official Journal of the European Union

               C 223/61

         Order of the Civil Service Tribunal of 5 June 2008 — Timmer v Court of Auditors
   (Case F-123/06) (1)

   (Staff - Officials - Assessment - Time-limit for lodging a complaint - New fact - Inadmissibility)
   (2008/C 223/114)
   Language of the case: French
   Parties

      Applicant: Marianne Timmer (Saint-Sauves-d'Auvergne, France) (represented by: F. Rollinger, lawyer)

      Defendant: Court of Auditors of the European Communities (represented by: T. Kennedy, J.-M. Stenier and G. Corstens, acting as Agents)
   Re:
   Firstly, annulment of all the applicant's staff reports drawn up by M.L. and the connected and/or subsequent decisions, including that appointing M L. and, secondly, an application for damages.
   Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               Each party shall bear its own costs.

      (1)  OJ C 326, 30.12.2006, p. 84.


title: Judgment of the Court of First Instance of 25 May 2000 in Case T-77/95 RV: Union Française de l'Express (Ufex) and Others v Commission of the European Communities (Competition — Rejection of a complaint — Community interest — Appeal — Case referred back by the Court of Justice)

text:
22.7.2000                EN                      Official Journal of the European Communities                                        C 211/17
                                                           COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                     JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 13 June 2000
                           of 25 May 2000
                                                                            in Joined Cases T-204/97 and T-270/97: EPAC — Empresa
in Case T-77/95 RV: Union Française de l’Express (Ufex)                     para a Agroalimentação e Cereais SA v Commission of
and Others v Commission of the European Communi-                                            the European Communities (1)
                                 ties (1)
                                                                            (Action for annulment — State Aid — Article 92(1) and (3)
                                                                            of the EC Treaty (now, after amendment, Article 87(1) and
(Competition — Rejection of a complaint — Community                         (3) EC) — Meaning of aid — State guarantee for the
interest — Appeal — Case referred back by the Court of                      financing of a public undertaking — Suspension of aid —
                                Justice)                                                         No need to adjudicate)
                                                                                (2000/C 211/35)
                           (2000/C 211/34)
                                                                                (Language of the case: Portuguese)
                     (Language of the case: French)
                                                                            In Joined Cases T-204/97 and T-270/97: EPAC — Empresa
                                                                            para a Agroalimentação e Cereais SA, established in Lisbon,
                                                                            represented by J. Mota de Campos, of the Lisbon Bar, with an
In Case T-77/95 RV: Union Française de l’Express (Ufex),                    address for service in Luxembourg at the Chambers of J. Calvo
formerly Syndicat Français de l’Express International (SFEI),               Barasan, 34 Boulevard Ernest Feltgen, against the Commission
established in Roissy-en-France, France, DHL International,                 of the European Communities (Agents: D. Triantafyllou and
established in Roissy-en-France, Service CRIE, established in               A.A.M. Alves Vieira) — application, in Case T-204/97, for the
Paris, and May Courrier, established in Paris, represented by               annulment of Commission Decision 97/433/EC of 30 April
E. Morgan de Rivery, of the Paris Bar, and J. Derenne, of the               1997 requiring the Portuguese Government to suspend the aid
Brussels and Paris Bars, with an address for service in                     in the form of a State guarantee granted to the undertaking
Luxembourg at the Chambers of A. Schmitt, 7 Val Sainte-                     EPAC — Empresa Para a Agroalimentação e Cereais SA (OJ
Croix, v Commission of the European Communities (Agents:                    1997 L 186, p. 25) and, in Case T-270/97, for the annulment
R. Lyal and J.-Y. Art) — application for annulment of                       of Commission Decision 97/762/EC of 9 July 1997 on
Commission Decision SG (94) D/19144 of 30 December 1994                     measures taken by Portugal to assist EPAC — Empresa Para a
rejecting the complaint of 21 December 1990 by Syndicat                     Agroalimentação e Cereais SA (OJ 1997 L 311, p. 25) — the
Français de l’Express International — the Court of First                    Court of First Instance (Fifth Chamber, Extended Composition),
Instance (Second Chamber), composed of: J. Pirrung, President,              composed of J.D. Cooke, President of the Chamber, R. Garcı́a-
R.M. Moura Ramos and A.W.H. Meij, Judges; B. Pastor,                        Valdecasas, P. Lindh, J. Pirrung and M. Vilaras, Judges; A. Mair,
Principal Administrator, for the Registrar, gave a judgment on              Administrator, for the Registrar, gave a judgment on 13 June
25 May 2000, in which it:                                                   2000, the operative part of which is as follows:
1. Annuls Commission Decision SG (94) D/19144 of                            1. Cases T-204/97 and T-270/97 are joined for the purposes of
     30 December 1994 rejecting the complaint of 21 December                     the judgment;
     1990 by Syndicat Français de l’Express International (SFEI),
     now Union Française de l’Express (Ufex);                               2. The action in Case T-270/97 is dismissed;
                                                                            3. There is no need to adjudicate on the action in Case T-204/97;
2. Orders the Commission to bear its own costs and to pay all the
     costs incurred by the applicants before the Court of First Instance    4. The applicant is ordered to bear its own costs and those incurred
     and the Court of Justice.                                                   by the Commission in Case T-270/97;
                                                                            5. The applicant is ordered to bear its own costs and those incurred
                                                                                by the Commission in Case T-204/97.
(1) OJ C 137 of 3.6.95.
                                                                            (1) OJ No C 318, 18.10.1997 and No C 370, 6.12.1997.


title: Action brought on 9 December 1996 by Smanor SA, Hubert Segaud and Monique Segaud against the Commission of the European Communities (Case T-201/96)

text:
22 . 2 . 97          EN                  Official Journal of the European Communities                              No C 54/29
The applicants claim that the Court should:                         very composition of Bergasol as a whole, that is to say,
                                                                    due to the use of 5-MOP in association with sun filters
— order the Commission to pay damages in the sum of                 and appropriate excipients . In the present case, the
     FF 152 867 090 ( one hundred and fifty two million             Commission disregarded the two-tier nature of the system
     eight hundred and sixty seven thousand and ninety              imposed on it by the 'cosmetics' Directive, that is to say,
     French francs ) to Laboratoires Pharmaceutiques                the obligation to consult the Scientific Committee
     Bergadem SA and in the sum of FF 161 309 995,33                beforehand and the fact that its competence is dependent
     ( one hundred and sixty one million three hundred and          on the receipt of a positive opinion from the Adaptation
     nine thousand nine hundred and ninety five francs and          Committee .
     thirty three centimes ) to Mr Jean-Jacques Goupil
     personally,                                                    That conduct on the part of the Commission was the
                                                                    direct and decisive cause of the significant financial
— order the Commission to pay all the costs .                       damage suffered by the company and by Mr Goupil
                                                                    personally, consisting of lost profits, research and
Pleas in law and main arguments adduced in support:                 advertising expenses, the fees of experts and advisers and
                                                                    the expense involved in dismissing staff.
The applicants, Laboratoires Pharmaceutiques Bergadem
SA and its chairman and managing director, Jean-Jacques
Goupil , who holds 99,875% of its share capital , have
brought proceedings for damages based on the non
contractual liability of the Community, as provided for in
                                                                    Action brought on 9 December 1996 by Smanor SA,
the second paragraph of Article 215 and Article 178 of              Hubert Segaud and Monique Segaud against the
the EC Treaty.
                                                                             Commission of the European Communities
                                                                                ( Case T-201 /96 )
Laboratoires Pharmaceutiques Bergadem SA, which was
placed in receivership by court order of 6 July 1995 and                                      ( 97/C 54/48 )
in judicial liquidation in October 1995 , carried on
business in the field of para-pharmaceutical and cosmetic                           (Language of the case: French)
products . One of its three product lines was Bergasol , a
sun protection oil containing, inter alia , natural citrus          An action against the Commission of the European
essences which themselves contain a chemical substance              Communities was brought before the Court of First
named 5-MOP, a type of furocoumarines ( psoralens ).                Instance of the European Communities on 9 December
                                                                     1996 by Smanor SA, established at Saint Martin D'Ecublei
On 10 July 1995 , the Commission adopted the 18th                   ( France ), Hubert Segaud and Monique Segaud , residing at
Directive 95/34/EC adapting to technical progress                   Saint Martin D'Ecublei ( France ), represented by Laurence
Annexes II, III, VI and VII to Council Directive 76/768/            Roques, of the Val de Marne Bar.
EEC on the approximation of the laws of the Member
States relating to cosmetic products, which limits the              The applicants claim that the Court should :
maximum concentration of furocoumarines ( psoralens ) in
                                                                    — declare that the Commission has failed to act,
sun protection products to 1 mg/kg.
                                                                    — rule, on the basis of Article 215 of the Treaty, that the
The applicants consider that, in making the contested                    Commission has incurred non-contractual liability
adaptation, the Commission breached its obligation                       towards both Smanor SA and Mr and Mrs Segaud,
constantly to update its sources of scientific information,              its founders, salaried managers and majority
which necessitates an exchange of scientific arguments                   shareholders, and that it should pay them
and, indeed, a comparative appraisal of scientific opinions              compensation for the damage in the sum of ECU
where these diverge . It contends that the Commission has                4 562 884 ,
disregarded the clear distinction between the substance in
its chemically pure form and the finished product,                  — order the Commission to pay the costs .
Bergasol , because the 'cosmetics' Directive relates to the
finished cosmetic product as a whole, and that it has                Pleas in law and main arguments adduced in support:
committed a serious breach of the fundamental principles
of the 'cosmetic ' Directive and of the applicants ' rights          On 14 July 1988 the Court of Justice of the European
arising from it, in particular by the misuse of the legal            Communities delivered a judgment (') in a reference made
remedies provided for by that Directive . In reality, the            to the Court of Justice by the Tribunal de Commerce
Directive concerns only the applicants and the product               ( Commercial Court ), L'Aigle, for a preliminary ruling on
 Bergasol; the Commission has used the Directive as a                the interpretation of Articles 30 to 36 of the EEC Treaty
vehicle since it has mandatory legislative effect and cannot         and Articles 5 , 15 and 16 of Council Directive 79/ 112 of
 be challenged directly by individuals .                             18 December 1978 . The question referred in that case had
                                                                     been raised in proceedings for reconstruction under
According to the applicants, to limit the concentration of           judicial supervision brought against Smanor SA before the
 5-MOP in sun protection products to 1 mg/kg constitutes             national court in L'Aigle .
a disproportionate measure which is not appropriate for
 the objective which that limitation seeks to achieve, since         In consequence of that judgment, the applicants requested
 the protection of human health can be ensured by the                the Commission on several occasions to intervene in
 ---pagebreak--- No C 54/30           I EN                 Official Journal of the European Communities                                   22 . 2 . 97
order to ensure compliance with the judgment by the                  awarded, subject to Luxembourg law and also provided
French State. The applicants consider that the Commission            for the exclusive jurisdiction of the Court of Justice of the
allowed the French State total discretion and complete               European Communities .
freedom to resort to whatever domestic legal provisions
were necessary in order to negate the entire effect of               The applicant claims, first, that there has been an
the provisions of Community law thus adjudicated on,                 infringement of Articles 1134, 1134-1 and 1135 of the
thereby seriously undermining the coherence and                      Luxembourg Civil Code, of the general principles of the
effectiveness of those provisions .                                  law on contracts and of the performance in good faith of
                                                                     contracts . It stresses in that regard that the contract at
The applicants further consider that the aggregated                  issue was awarded by valid, public and unequivocal
damage to be made good by the Commission, whose                      consensus ad idem .
failure to act continues to render it liable, amounts to 25
million French francs, valued as at 1988 , subject to                Secondly, the applicant states that even if it were to be
application of the appropriate weighting to take into                assumed that there was no actual or apparent contract in
account the depreciation of that currency, namely 1,19%              this case, which is denied, there should be a finding of
 ( total sum : ECU 4 562 884 ).                                      tortious liability, first, during the precontractual phase
                                                                     and, secondly, by virtue of infringement of Article 1382 et
H 1988 ECR 4489 .                                                    seq. of the Luxembourg Civil Code and of the Grand
                                                                     Ducal Regulation of 27 January 1994 implementing in
                                                                     Luxembourg law the EEC directives on public works
                                                                     contracts, public supply contracts and public services
                                                                     contracts . Specifically, there is no doubt that all the
                                                                     information required from tenderers was contained in the
Action brought on 10 December 1996 by Embassy                        applicant's tender in accordance with Article 29 of Title II
    Limousines & Services SA against European Parliament             of the abovementioned Grand-Ducal Regulation. Likewise,
                        ( Case T-203/96 )                            Article 23 of the General Conditions established by that
                                                                     regulation permits a supplier to be excluded from
                           ( 97/C 54/49 )                            participation in the contracting procedure only in the
                 (Language of the case: French)                      exhaustive cases to which it refers, which, according to
                                                                     the applicant, are wholly inapplicable here .
An action against the European Parliament was brought
before the Court of First Instance of the European                   The applicant concludes that in any event the defendant
Communities on 10 December 1996 by Embassy                           institution conducted itself negligently and even
                                                                     improperly in ignoring and flouting its interests. If the
Limousines & Services SA, whose registered office is at
                                                                     defendant did not intend to perform the contract and/or
Diegem, Belgium, represented by E. Boigelot, of the
Brussels Bar, with an address for service in Luxembourg at           considered that no contract had arisen, it is particularly
the Chambers of Louis Schiltz, 2 rue du Fort Rheinsheim .            abusive and injurious to require the applicant to carry out
                                                                     urgent and costly preparation, which was particularly
The applicant claims that the Court should:                          demanding in terms of time, energy and expense, for a
                                                                     contract which it is then decided not to perform or which
— order the European Parliament to pay to the applicant              is alleged to be non-existent.
      the sum of FB 24 267 910, subject to an increase or
      reduction in that amount in the course of the
      proceedings, by way of compensation for the financial,
      commercial and non-material damage which it is
      suffering on account of the wrongful conduct of the
      European Parliament,                                           Action brought on 9 December 1996 by Mrs Marta
                                                                     Alvarez-Cotera against the Commission of the European
                                                                                Communities
— order the European Parliament to bear all the costs of
      the proceedings.                                                                      ( Case T-204/96 )
                                                                                ( 97/C 54/50 )
Pleas in law and main arguments adduced in support:
                                                                                (Language of the case: English)
The applicant, a service company, which claims to have
been contacted officially by a representative of the                 An action against the Commission of the European
defendant institution for the purpose of informing it of the         Communities was brought before the Court of First
award to it of the contract for which it had tendered                Instance of the European Communities on 9 December
concerning the provision, by external services, of                   1996 by Mrs Marta Alvarez-Cotera , represented by
chauffeur-driven transport on the occasion of meetings in            Gerald van der Wal, Member of the Bar of the Supreme
Brussels, objects to the withdrawal of the invitation to             Court of the Netherlands, of Barents & Krans, Advocaten
tender in question and the initiation of a new award                 Notarissen , Brussels , with an address for service in
procedure .                                                          Luxembourg at the Chambers of A. May, Luxembourg.
It explains that under the terms of the invitation to tender         The applicant claims that the Court should :
and the framework contract at issue the European
Parliament made the framework contract, and contracts                — declare the decision of 25 September 1996 void,