title: Case T-95/01: Action brought on 4 May 2001 by Gérard Goget, Pierre Huge and Emmanuel Gabolde v Court of Auditors of the European Communities

text:
C 186/16              EN                     Official Journal of the European Communities                                     30.6.2001
In support of her claim the applicant alleges:                          Pleas in law and main arguments
—    Infringement of the selection notice, of essential pro-            The applicant seeks the annulment of the decision of the
     cedural requirements, and of the rules governing the               ECB of 25 September 2000 refusing her the benefit of an
     operation of selection boards (principle of independence);         educational allowance, and the decisions of the ECB of
                                                                        21 December 2000, rejecting the appellant’s administrative
—    The existence, in casu, of a manifest error of assessment;         review, and of 20 February 2000, rejecting the appellant’s
                                                                        grievance.
—    Breach of the obligation to provide reasons;
—    Infringement of the principle of transparency;                     The educational allowance was refused to the applicant on the
                                                                        basis of Article 19 of the Conditions of Employment of the
                                                                        staff of the ECB. According to that article, members of the staff
—    Infringement of the principle of equal treatment.
                                                                        of the ECB who are entitled to an expatriation allowance of
                                                                        16 % are also entitled to an educational allowance for each
                                                                        dependent child until the establishment of a European school
                                                                        in the Frankfurt area. The applicant has the German nationality
                                                                        and is therefore not entitled to an expatriation allowance.
                                                                        According to the ECB she is for this reason also not entitled to
                                                                        an educational allowance for her oldest child.
                                                                        The applicant claims:
                                                                        —     that this difference in treatment between staff members
Action brought on 27 April 2001 by Astrid Hirsch against                      entitled to an expatriation allowance and those who are
                 the European Central Bank.                                   not entitled to an expatriation allowance, is unjustified
                                                                              and therefore constitutes a breach of the principle of non-
                                                                              discrimination.
                         (Case T-94/01)
                                                                        —     that the administration has failed in its obligation of
                                                                              due care since it has not taken into consideration the
                        (2001/C 186/24)                                       applicant’s situation.
                  (Language of the case: English)
An action against the European Central Bank was brought
before the Court of First Instance of the European Communities
on 27 April 2001 by Astrid Hirsch, resident in Germany,                 Action brought on 4 May 2001 by Gérard Goget, Pierre
represented by Georges Vandersanden and Laure Levi, of                  Huge and Emmanuel Gabolde v Court of Auditors of the
DeBacker Association, Brussels (Belgium).                                                   European Communities
The applicant claims that the Court should:                                                       (Case T-95/01)
—    annul the decision of the European Central Bank of                                          (2001/C 186/25)
     25 September 2000 refusing the applicant the benefit of
     the education allowance and therefore the reimbursement
     of the tuition fees that the applicant has to pay for                                 (Language of the case: French)
     the attendance of her son at the Internationale Schule
     Frankfurt and, if necessary, annul the decisions of the
     European Central Bank of 21 December 2000 rejecting                An action against the Court of Auditors of the European
     the applicant’s administrative review and of 20 February           Communities was brought before the Court of First Instance
     2000 rejecting the applicant’s grievance;                          on 4 May 2001 by Gérard Goget, residing in Hettange-Grande,
                                                                        France, Pierre Huge, residing in Bonnevoie, Grand Duchy of
—    order the ECB to reimburse the tuition fees amounting to           Luxembourg, and Emmanuel Gabolde, residing in Metz,
     EUR 11 370,00 for the school year 2000-2001 and of                 France, represented by the lawyer André Soulier, with an
     future tuition fees for the future school years, with an           address for service in Luxembourg.
     interest of 8 % per year from 1 of September of each year
     until the due payment, and order the ECB to reimburse              The applicants claim that the Court of First Instance should:
     the installation fees amounting to EUR 5 922 with an               —     Annul the decision of 22 February 2001 with all the
     interest of 8 % per year from 1 of September 2001;                       consequences in law;
—    order the ECB to pay the costs.                                    —     Order the defendant to pay the costs.
 ---pagebreak--- 30.6.2001              EN                     Official Journal of the European Communities                                       C 186/17
Contentions and principal arguments adduced in support                        (2) the decision of the selection board for that compe-
                                                                                tition, as recorded and notified to the applicant by
The applicants oppose the appointment, with effect from                             the defendant’s letter of 17 October 2000 under
1 July 2001, of the new Secretary General of the Court of                           reference number 2556, to give the applicant a fail
Auditors.                                                                           mark in the abovementioned fresh oral test and not
                                                                                to include him on the list of successful candidates;
In support of their claim, they rely on the following pleas:
                                                                              (3) the defendant’s reply of 20 February 2001 rejecting
—     Legal errors in the vacancy notice for the post in that,                      the administrative complaints under reference num-
      whilst the vacancy notice indicated that the successful                       bers R/502/00 and R/627/00 submitted by the
      candidate would be paid on the basis of salary scale A1,                      applicant against the first two contested measures
      the Court subsequently envisaged proposing that the post                      referred to above;
      at issue should be an ‘unclassified’ post. Moreover, the
      condition regarding relevant experience and the condition
                                                                              (4) all other related enforceable measures of the
      concerning ability to assume responsibility for manage-
                                                                                defendant;
      ment of an organisation with numerous staff do not meet
      the requirements of precision and accuracy.
                                                                         —    order payment of compensation amounting to
—     Manifest error of assessment of criteria in that, in                    EUR 50 000 for the material and non-material harm
      particular, the Court used grade A6/A7 as the basis for                 caused to the applicant by the abovementioned measures;
      calculating the requisite 15 years’ experience.
—     Infringement of procedure in the selection of candidates           —    order the defendant to pay the costs.
      in that none of them was called to an interview even
      though such an interview was provided for in the vacancy
      notice.
                                                                         Grounds for annulment and main arguments
—     Manifest error of assessment in the choice of the success-
      ful candidate.
                                                                         The applicant’s allegations against the defendant are as follows:
                                                                         Claim for annulment
Action brought on 4 May 2001 by Christos Gogos against                   —    Infringement of Article 233 EC, independently and in
       the Commission of the European Communities                             conjunction with the infringement of the principle of
                                                                              equal treatment and of the rules governing the operation
                         (Case T-97/01)                                       of selection boards:
                        (2001/C 186/26)                                       (a)   the method chosen by the defendant for complying
                                                                                with the judgment of the Court of First Instance of
                                                                                23 February 2000 was inconsistent with Article 233
                                                                                EC (and with the abovementioned principle and
                    (Language of the case: Greek)
                                                                                rules);
An action against the Commission of the European Communi-                     (b) it would have been lawful to comply with the
ties was brought before the Court of First Instance of the                          judgment of the Court of First Instance of 23 Febru-
European Communities on 4 May 2001 by Christos Gogos,                               ary 2000 by including the applicant on the list of
assistant administrator at the Commission, represented by                           successful candidates without fresh tests:
Professor Kharis Tagaras, Lawyer, Sagia Chambers, Likavit-
tou 5, Athens 106 72.
                                                                                (i)   the argument arising from the judgment of the
The applicant claims that the Court should:                                               Court of First Instance of 23 February 2000;
—     annul:                                                                        (ii) rebuttal of the defendant’s submissions that
      (1) the decision of the appointing authority of the                                 entry on the list of successful candidates with-
            defendant, as recorded and notified to the applicant                          out a fresh oral test is contrary to Community
            by letter of 30 June 2000 under reference num-                                law;
            ber 1847, to invite him to a fresh oral test in internal
            competition COM/A/17/96 following the annulling                         (iii) the applicant’s general performance in the
            judgment of the Court of First Instance of 23 Febru-                          tests in competition COM/A/17/96 and the
            ary 2000 (Case T-95/98);                                                      principle of proportionality;


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 5 June 1996 in Case T-92/94: Rodolfo Maslias v. European Parliament (Officials - Household allowance - Spouse's income from employment in excess of the ceiling under the Staff Regulations - Retroactive withdrawal of entitlement to the allowance - Recovery of undue payment)

text:
No C 210/ 12           EN                   Official Journal of the European Communities                                  20 . 7 . 96
                                                      COURT OF FIRST INSTANCE
JUDGMENT OF THE COURT OF FIRST INSTANCE                                 JUDGMENT OF THE COURT OF FIRST INSTANCE
                         of 5 June 1996                                                         of 5 June 1996
in Case T-92/94: Rodolfo Maslias v. European                           in Case T-162/94, NMB France and Others v. Commission
                           Parliament ( 1 )                                           of the European Communities ( ] )
(Officials — Household allowance — Spouse's income from                (Anti-dumping duties — Ball-bearings — Reimbursement
employment in excess of the ceiling under the Staff                    — 'Duty as a cost' rule — Difference of treatment between
Regulations — Retroactive withdrawal ofentitlement to the              associated importers and independent importers —
         allowance — Recovery of undue payment)                        Previous judgment of the Court of Justice — Res
                          ( 96/C 210/29 )                                                           judicata)
                                                                                ( 96/C 210/30 )
                 (Language of tbe case: Greek)
                                                                                (Language of tbe case: English)
In Case T-92/94 : Rodolfo Maslias, an official of the                  In Case T-162/94 , NMB France SARL, whose registered
European Parliament, residing in Luxembourg, represented               office is in Argenteuil ( France ), NMB-Minebea-GmbH,
by Charissios Tagaras, of the Thessaloniki Bar, with an                whose registered office is in Langen ( Germany ), NMB (UK )
address for service in Luxembourg at the Chambers of                   Ltd, whose registered office is in Bracknell , Berkshire
Evelyn Korn, 22 Rue de Nassau, v . European Parliament                 ( United Kingdom ), and NMB Italia Sri , whose registered
( Agent: Jannis Pantalis ) — application, first, for annulment         office is in Mazzo di Rho ( Italy ), represented by Ian
of the decision of 21 June 1993 withdrawing, with effect               Forrester QC, of the Scots Bar, Jacquelyn F. MacLennan,
from 1 August 1988 , the applicant's entitlement to the                Solicitor, and A. Kaplanidis, of the Thessaloniki Bar, with
household allowance and providing for recovery of the sum              an address for service in Luxembourg at the Chambers of
of LR 676 800 , and, second, for annulment of the decision             Loesch & Wolter, 11 Rue Goethe, v. Commission of the
of 3 December 1993 rejecting the applicant's complaint —               European Communities ( Agents : Eric L. White, and
the Court of First Instance (Third Chamber ), composed of:             Claus-Michael Happe ), supported by Federation of
B. Vesterdorf, acting for the President, and P. Lindh and A.           European Bearing Manufacturers ' Associations ( Febma ),
Potocki, Judges; B. Pastor, Principal Administrator, for the           whose headquarters is in Frankfurt ( Germany ), represented
Registrar, has given a judgment of 5 June 1 996 , in which             by Dietrich Ehle and Volker Schiller, Rechtsanwàlte ,
it :                                                                   Cologne, with an address for service in Luxembourg at the
                                                                       Chambers of Arendt & Medernach, 8—10 Rue Mathias
                                                                       Hardt — application for the annulment of Commission
                                                                       Decisions 92/332/EEC, 92/333/EEC, 92/334/EEC and
1 . annuls the decision of the Parliament of2 1 June 1994 in           92/335/EEC of 3 June 1992 concerning applications for the
     so far as it requires the recovery of sums unduly paid in         refund of anti-dumping duties collected on certain imports
     respect of the household allowance for the period from            of certain ball-bearings originating in Singapore ( OJ No
     1 August 1988 to 30 November 1989;                                L 185 , 1992 , pp . 35 , 38 , 41 and 44 ) — the Court of First
                                                                       Instance of the European Communities ( Second Chamber,
                                                                       Extended Composition ) composed of H. Kirschner,
2 , orders the Parliament to pay default interest at the               President, B. Vesterdorf, C. W. Bellamy, A. Kalogeropoulos
     annual rate of 8% on all sums recovered by it in excess           and A. Potocki, Judges, Registrar: J. Palacio Gonzalez,
     of the limits laid down by the present judgment;                  Administrator, gave a judgment on 5 June 1996 in which
                                                                       it :
3 , dismisses the remainder of the application;                         1 . declares that it is unnecessary to give judgment on the
                                                                            action brought by NMB France SARL;
4 . orders the parties to bear their own costs.
                                                                       2 , declares that it is unnecessary to give judgment on the
                                                                            action brought by NMB-Minebea-GmbH, NMB (UK)
                                                                            Ltd and NMB Italia Sri to the extent to which it relates
(!) OJ No C 132 of 14 . 5 . 1994 .
                                                                            to the reimbursement of anti-dumping duties collected
                                                                            in relation to the period from 21 September 1990;
                                                                       3.   dismisses the remainder of the action;


               23.7.2005

               EN

               Official Journal of the European Union

               C 182/45

         Partial Removal from the Register of Case T-122/05 (1)

   (2005/C 182/86)

      (Language of the case: German)

   By order of 24 May 2005, the President of the First Chamber of the Court of First Instance of the European Communities has ordered the removal of the name of the appliciant Marenzi Privatstiftung from the list of names of the applicants in Case T-122/05, Benkö and Others v Commission of the European Communities.

      (1)  Not yet published in the OJ.


title: Case T-482/08: Action brought on 11 November 2008 — Atlas Transport v OHIM — Hartmann (ATLAS TRANSPORT)

text:
               7.2.2009

               EN

               Official Journal of the European Union

               C 32/38

         Action brought on 11 November 2008 — Atlas Transport v OHIM — Hartmann (ATLAS TRANSPORT)
   (Case T-482/08)
   (2009/C 32/74)
   Language in which the application was lodged: German
   Parties

      Applicant: Atlas Transport GmbH (Düsseldorf, Germany) (represented by: U. Hildebrandt, K. Schmidt-Hern and B. Weichhaus, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Alfred Hartmann (Leer, Germany)
   Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 September 2008 (Case R 1858/2007-4); and

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: Word mark ‘Atlas Transport’ for transport operations (transport of goods) in Class 39 (Community trade mark No 545 681).

      Proprietor of the Community trade mark: The applicant.

      Applicant for the declaration of invalidity: A. Hartmann.

      Decision of the Cancellation Division: Dismissal of the application.

      Decision of the Board of Appeal: Granting of the application for a declaration that the registration has lapsed.

      Pleas in law: Breach of Article 15 and Rules 22 and 40 of Regulation (EC) No 2868/95 (1), in so far as an incorrect standard was applied to the proof of use preserving the rights held and as evidence submitted was incorrectly assessed; breach of the procedural requirements of the right to a hearing in accordance with [Rule] 73(2) of Regulation (EC) No 2868/95 and of the duty to give reasons under [Rule] 73(1) of Regulation (EC) No 2868/95; incorrect assessment.

      (1)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1).


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 14 May 1998 in Case T-319/94: Fiskeby Board AB v. Commission of the European Communities (Competition - Article 85(1) of the EC Treaty - Fines - Determination of the amount - Mitigating circumstances - Statement of reasons)

text:
4.7.98               EN                Official Journal of the European Communities                                C 209/33
    successor, shall be so conducted as to exclude any              JUDGMENT OF THE COURT OF FIRST INSTANCE
    information from which the behaviour of individual                                   of 14 May 1998
    producers can be identified.'.
                                                                  in Case T-327/94: SCA Holding Ltd v. Commission of the
                                                                                European Communities (1)
3. Sets the amount of the fine imposed on the applicant
    by Article 3 of Decision 94/601/EC at ECU 2 500 000.          (Competition Ð Article 85(1) of the EC Treaty Ð
                                                                  Liability for the infringement Ð Fine Ð Statement of
                                                                              reasons Ð Mitigating circumstances)
4. Dismisses the application as regards the remaining                                     (98/C 209/70)
    claims.
                                                                                (Language of the case: English)
5. Orders each party to bear its own costs.
                                                                  In Case T-327/94: SCA Holding Ltd, established at
(1) OJ C 380, 31.12.1994.
                                                                  Aylesford, United Kingdom, represented by Giuseppe
                                                                  Scasselati-Sforzolini, of the Bologna Bar, and Laurent
                                                                  Garzaniti, of the Brussels Bar, with an address for service
                                                                  in Luxembourg at the Chambers of Elvinger, Hoss and
                                                                  Prussen, 15 Côte d'Eich v. Commission of the European
                                                                  Communities (Agents: Julian Currall and Richard Lyal) Ð
                                                                  application for annulment of Commission Decision 94/
  JUDGMENT OF THE COURT OF FIRST INSTANCE                         601/EC of 13 July 1994 relating to a proceeding under
                      of 14 May 1998                              Article 85 of the EC Treaty (IV/C/33.833 Ð Cartonboard,
                                                                  OJ L 243 of 19.9.1994, p. 1) Ð the Court (Third
in Case T-319/94: Fiskeby Board AB v. Commission of               Chamber, Extended Composition), composed of:
                the European Communities (1)                      B. Vesterdorf, President of the Chamber, C. P. BrieÈt,
(Competition Ð Article 85(1) of the EC Treaty Ð Fines             P. Lindh, A. Potocki and J. D. Cooke, Judges; J. Palacio
Ð Determination of the amount Ð Mitigating                        GonzaÂlez, Administrator, for the Registrar, has given a
           circumstances Ð Statement of reasons)                  judgment on 14 May 1998, in which it:
                        (98/C 209/69)
                                                                  1. Dismisses the application.
               (Language of the case: English)
                                                                  2. Orders the applicant to pay the costs.
In Case T-319/94: Fiskeby Board AB, established at                (1) OJ C 380, 31.12.1994.
Norrköping, Sweden, represented by Carl Wetter, of the
Stockholm Bar, and Christopher Vajda, Barrister, of the
Bar of England and Wales, with an address for service in
Luxembourg at the Chambers of Elvinger, Hoss &
Prussen, 15 Côte d'Eich v. Commission of the European
Communities (Agents: Julian Currall and Richard Lyal) Ð
application for a reduction in the fine imposed on the              JUDGMENT OF THE COURT OF FIRST INSTANCE
applicant by Commission Decision 94/601/EC of 13 July
1994 relating to a proceeding under Article 85 of the                                    of 14 May 1998
EC Treaty (IV/C/33.833 Ð Cartonboard, OJ L 243 of                 in Case T-334/94: Sarrió SA v. Commission of the
19.9.1994, p. 1) Ð the Court (Third Chamber, Extended                               European Communities (1)
Composition), composed of B. Vesterdorf, President of the
Chamber, C. P. BrieÈt, P. Lindh, A. Potocki and J. D.             (Competition Ð Article 85(1) of the EC Treaty Ð
Cooke, Judges; J. Palacio GonzaÂlez, Administrator, for the       Concept of single infringement Ð Information exchange
Registrar, has given a judgment on 14 May 1998 in which           Ð Order Ð Fine Ð Determination of the amount Ð
it:                                                               Method of calculation Ð Statement of reasons Ð
                                                                                Mitigating circumstances)
1. Dismisses the application.                                                             (98/C 209/71)
                                                                                (Language of the case: Italian)
2. Orders the applicant to pay the costs.
(1) OJ C 380, 31.12.1994.                                         In Case T-334/94: Sarrió SA, established at Pamplona,
                                                                  Spain, represented by Antonio Creus Carreras, of the
                                                                  Barcelona Bar, Alberto Mazzoni, of the Milan Bar,
                                                                  Antonio Tizzano and Gian Michele Roberti, of the Naples


title: Case C-467/08: Judgment of the Court (Third Chamber) of 21 October 2010 (reference for a preliminary ruling from the Audiencia Provincial de Barcelona — Spain) — PADAWAN SL v Sociedad General de Autores y Editores (SGAE) (Approximation of laws — Copyright and related rights — Directive 2001/29/EC — Reproduction right — Exceptions and limitations — Private copying exception — Definition of fair compensation — Uniform interpretation — Implementation by the Member States — Criteria — Limits — Private copying levy applied to digital reproduction equipment, devices and media)

text:
               18.12.2010

               EN

               Official Journal of the European Union

               C 346/5

         Judgment of the Court (Third Chamber) of 21 October 2010 (reference for a preliminary ruling from the Audiencia Provincial de Barcelona — Spain) — PADAWAN SL v Sociedad General de Autores y Editores (SGAE)
   (Case C-467/08) (1)

   (Approximation of laws - Copyright and related rights - Directive 2001/29/EC - Reproduction right - Exceptions and limitations - Private copying exception - Definition of ‘fair compensation’ - Uniform interpretation - Implementation by the Member States - Criteria - Limits - Private copying levy applied to digital reproduction equipment, devices and media)
   2010/C 346/08
   Language of the case: Spanish

      Referring court

   Audiencia Provincial de Barcelona

      Parties to the main proceedings

      Applicant: PADAWAN SL

      Defendant: Sociedad General de Autores y Editores (SGAE)
   In the presence of: Entidad de Gestión de Derechos de los Productores Audiovisuales (EGEDA), Asociación de Artistas Intérpretes o Ejecutantes — Sociedad de Gestión de España (AIE), Asociación de Gestión de Derechos Intelectuales (AGEDI), Centro Español de Derechos Reprográficos (CEDRO),

      Re:

   Reference for a preliminary ruling — Audiencia Provincial de Barcelona — Interpretation of Article 5(2)(b) of Directive 2001/29/EC of the European Parliament and the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2009 L 167, p. 10) — Reproduction right — Exceptions and limitations — Fair compensation — Private copying levy system applied to digital equipment, devices and media

      Operative part of the judgment

               1.

               The concept of ‘fair compensation’, within the meaning of Article 5(2)(b) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, is an autonomous concept of European Union law which must be interpreted uniformly in all the Member States that have introduced a private copying exception, irrespective of the power conferred on the Member States to determine, within the limits imposed by European Union law in particular by that directive, the form, detailed arrangements for financing and collection, and the level of that fair compensation.

               2.

               Article 5(2)(b) of Directive 2001/29 must be interpreted as meaning that the ‘fair balance’ between the persons concerned means that fair compensation must be calculated on the basis of the criterion of the harm caused to authors of protected works by the introduction of the private copying exception. It is consistent with the requirements of that ‘fair balance’ to provide that persons who have digital reproduction equipment, devices and media and who on that basis, in law or in fact, make that equipment available to private users or provide them with copying services are the persons liable to finance the fair compensation, inasmuch as they are able to pass on to private users the actual burden of financing it.

               3.

               Article 5(2)(b) of Directive 2001/29 must be interpreted as meaning that a link is necessary between the application of the levy intended to finance fair compensation with respect to digital reproduction equipment, devices and media and the deemed use of them for the purposes of private copying. Consequently, the indiscriminate application of the private copying levy, in particular with respect to digital reproduction equipment, devices and media not made available to private users and clearly reserved for uses other than private copying, is incompatible with Directive 2001/29.

      (1)  OJ C 19, 24.1.2009, p. 12.


title: Case F-29/06: Action brought on  13 March 2006  — Arnaldos Rosauro and Others v Commission

text:
               20.5.2006

               EN

               Official Journal of the European Union

               C 121/19

         Action brought on 13 March 2006 — Arnaldos Rosauro and Others v Commission
   (Case F-29/06)
   (2006/C 121/37)
   Language of the case: French
   Parties

      Applicants: Andres Arnaldos Rosauro and Others (represented by: S. Rodrigues and A. Jaume, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul the applicants' instruments of appointment, taken together with the remuneration slips which they have received since the date of their advancement from category C to category B, in that the slips appoint them in grade B*3/B*4 and retain their basic salary as it was before the change of category through the application of a multiplier;

               —

               Annul the decision of the Appointing Authority to remove the applicants' promotion points ('rucksack') following their advancement from category C to category B;

               —

               Inform the Appointing Authority of the consequences of those annulments, that is to say, with retroactive effect from the day of their advancement from category C to category B: (1) the appointment of the applicants in grade B*5/B*6 under Article 2 of Annex XIII to the Staff Regulations, (2) the payment to them of the basic salary to which they are entitled under the Article 2(2) of Annex XIII to the Staff Regulations without a multiplier, (3) their retention, after their advancement to category B, of the merit points and transitional points which they accumulated when they were employed in category C;

               —

               Order the Commission of the European Communities to pay the costs.

         Pleas in law and main arguments
   The applicants are all successful candidates of the internal competition for change of category COM/PB/04, the notice for which was published before the date when the new Staff Regulations entered into force. After that date, they were appointed by the defendant to the higher category but, because of the application of a multiplier, that did not entail an increase in their remuneration. In addition, their promotion points were re-set at zero.
   In their action, the applicants submit three complaints, the first of which is that their appointment to grade B*3/B*4 is unlawful to the extent that the equivalent grades to those referred to in the competition notice are the grades B*5/B*6, in accordance with Article 2 of Annex XIII to the Staff Regulations.
   So far as the second complaint is concerned, the applicants argue that the application of a multiplier to their remuneration is contrary to, on the one hand, the Staff Regulations, which make no mention of the application of such a factor in this instance, and, on the other hand, the principle of non-discrimination, the principle of the protection of legitimate expectations and the principle of acquired rights.
   Lastly, as regards the third complaint, the applicants maintain that the cancellation of their promotion points is contrary to the spirit of Article 45a of the Staff Regulations and Article 5 of Annex XIII to the Staff Regulations, and the principle of equal treatment.


title: Case C-141/99: Reference for a preliminary ruling from the Hof van Beroep te Gent by judgment of that court of 13 April 1999 in the case of NV Algemene Maatschappij van Verzekeringen en Grondkrediet, now known as NV Algemene Maatschappij voor Investering en Dienstverlening (AMID), against the Belgian State

text:
3.7.1999              EN                    Official Journal of the European Communities                                        C 188/17
Communities, represented by Frank Benyon, Legal Adviser,               (2) order Ireland to pay the costs.
acting as Agent, with an address for service in Luxembourg at
the office of Carlos Gómez de la Cruz, Wagner Centre,
Kirchberg.                                                             Pleas in law and main arguments
The Commission of the European Communities claims that                 The Commission considers that Ireland’s legislation, by
the Court should:                                                      imposing excise duty on carriers in respect of every passenger
                                                                       ticket on services from Ireland to other Member States (with
(1) declare that, by failing to adopt the laws, regulations and        the exception of flights to Northern Ireland) and not upon
    administrative measures necessary in order to comply               flights within Ireland (and to Northern Ireland), is incompatable
    with Council Directive 94/56/EC of 21 November 1994                with the principle of freedom to provide services as stated in
    establishing the fundamental principles governing the              Articles 59 and 62 of the Treaty and in the rules laid down in
    investigation of civil aviation accidents and incidents (1),       Article 3(1) of Regulation 2408/92 of 23 July 1992 on access
    the Grand Duchy of Luxembourg has failed to fulfil its             for Community air carriers to intra-Community air routes.
    obligations under that directive;
                                                                       With regard to Ireland’s contention that there is no infringe-
(2) order the Grand Duchy of Luxembourg to pay the costs.              ment of Regulation 2408/92 because the excise duty is
                                                                       non-discriminatory on grounds of nationality, the Commission
                                                                       is of the view that the principles governing the freedom to
Pleas in law and main arguments                                        provide services go beyond the mere prohibition of any
                                                                       discrimination on grounds of nationality. Even if national
                                                                       measures restricting that freedom apply without distinction to
Article 12 of the abovementioned directive provides that the           national providers of services and to those of other Member
Member States are to bring into force the laws, regulations            States, they are still unacceptable if they are not warranted by
and administrative provisions necessary to comply with the             mandatory requirements in the public interest, or if the
directive not later than 21 November 1996, and that they are           same result can be obtained by less restrictive rules (the
to inform the Commission thereof.                                      proportionality principle).
Although the Grand Duchy of Luxembourg indicated, in its               (1) OJ L 240, 24.08.1992, p. 8.
response to the formal notice and to the reasoned opinion,
that the necessary measures were in the course of preparation,
the Commission has not to date received any information
regarding the adoption of those measures.
(1) OJ L 319 of 12.12.1994, p. 14.
                                                                       Reference for a preliminary ruling from the Hof van
                                                                       Beroep te Gent by judgment of that court of 13 April
                                                                       1999 in the case of NV Algemene Maatschappij van
                                                                       Verzekeringen en Grondkrediet, now known as NV
                                                                       Algemene Maatschappij voor Investering en Dienstverl-
                                                                                ening (AMID), against the Belgian State
Action brought on 19 April 1999 by the Commission of                                            (Case C-141/99)
         the European Communities against Ireland
                                                                                (1999/C 188/40)
                        (Case C-139/99)
                                                                       Reference has been made to the Court of Justice of the
                        (1999/C 188/39)                                European Communities by judgment of the Hof van Beroep te
                                                                       Gent (Ghent Court of Appeal) of 13 April 1999, received at
                                                                       the Court Registry on 21 April 1999, for a preliminary ruling
An action against Ireland was brought before the Court of              in the case of NV Algemene Maatschappij van Verzekeringen
Justice of the European Communities on 19 April 1999 by the            en Grondkrediet, now known as NV Algemene Maatschappij
Commission of the European Communities, represented by                 voor Investering en Dienstverlening (AMID), against the
Frank Benyon, Legal Adviser, acting as agent, with an address          Belgian State, on the following question:
for service in Luxembourg at the office of Carlos Gómez de la
Cruz, member of the Legal Service of the Commission, Centre            Does Article 52 of the Treaty of 25 March 1957 establishing
Wagner.                                                                the European Community preclude the application of national
                                                                       legislation of a Member State under which, for the purposes of
The Applicant claims that the Court should:                            assessment to corporation tax, a business loss incurred in that
                                                                       Member State during an earlier taxable period by a company
(1) declare that by providing in Section 65 of the Finance Act         established in that State can be offset against the profits made
    1982 (as amended) that flights from Ireland to other               by that company during a later taxable period only to the
    Member States (with the exception of Northern Ireland)             extent to which that loss cannot be attributed to the profit
    are subject to a higher tax rate than flights within Ireland,      made by a permanent establishment of that company in
    Ireland has failed to comply with Article 3(1) of Council          another Member State during that earlier taxable period, with
    Regulation (EEC) No 2408/92 (1);                                   the result that the loss thus attributed cannot be offset, in
 ---pagebreak--- C 188/18             EN                     Official Journal of the European Communities                                        3.7.1999
either of the Member States concerned, against the taxable             The applicant claims that the Court should:
income of that company for the purposes of assessment to
corporation tax, whereas, if the permanent establishment were
located in the same Member State as the company, the business          (a) Declare that:
losses in question could certainly be set off against the taxable
income of that company?                                                    — by maintaining, in breach of Article 59 of the EC
                                                                                Treaty, a general prohibition whereby lawyers estab-
                                                                                lished in other Member States and practising in Italy in
                                                                                the exercise of the freedom to provide services do not
                                                                                have available to them the infrastructure needed by
                                                                                them to provide their services;
                                                                           — by making enrolment as a lawyer on an Italian register
Reference for a preliminary ruling from the Verfassungs-                        conditional upon the possession of Italian citizenship,
gerichtshof, Austria, by order of that court of 10 March                        the possession of qualifications acquired only in Italy
1999 in the cases of Adria-Wien Pipeline GmbH and                               and maintenance of a residence in an Italian judicial
Wietersdorfer & Peggauer Zementwerke GmbH v Fin-                                district;
               anzlandesdirektion für Kärnten
                                                                           — by applying in a discriminatory manner against lawyers
                       (Case C-143/99)                                          from other Member States the ‘offsetting measures’
                                                                                (aptitude test) provided for in Article 4 of Council
                       (1999/C 188/41)                                          Directive 89/48/EEC of 21 December 1988; (1)
Reference has been made to the Court of Justice of the                     — by incompletely transposing Directive 89/48, notwith-
European Communities by an order of the Verfassungsgericht-                     standing the absence of implementing rules laying
shof (Constitutional Court), Austria, of 10 March 1999, which                   down arrangements for the aptitude test for lawyers
was received at the Court Registry on 21 April 1999, for a                      from other Member States,
preliminary ruling in the cases of Adria-Wien Pipeline GmbH
and Wietersdorfer & Peggauer Zementwerke GmbH v Fin-
anzlandesdirektion für Kärnten on the following questions:             the Italian Republic has failed to fulfil its obligations under
                                                                       Articles 52 and 59 of the EC Treaty and of Direc-
1. Are legislative measures of a Member State which provide            tive 89/48/EEC;
    for partial reimbursement of energy duties on natural gas
    and electrical energy, but grant that reimbursement only           (b) Order the italian Republic to pay the costs.
    to undertakings whose activity is shown to consist primar-
    ily in the production of tangible assets, to be regarded as
    State aid within the meaning of Article 92 of the EC
    Treaty?                                                            Contentions and principal arguments adduced in support
2. If the answer to Question 1 is affirmative: Is such a
    legislative measure to be regarded as State aid under
    Article 92 of the EC Treaty even if it is granted to all           (a) A lawyer established in another Member State who prac-
    undertakings, regardless of whether their activity is shown            tises law in the exercise of his freedom to provide
    to consist primarily in the production of tangible assets?             services must have an opportunity of access in Italy to
                                                                           an infrastructure enabling him to provide the services
                                                                           requested by his clients. The prohibition in Article 2 of
                                                                           Law No 31/1982, by reason of its absolute and general
                                                                           nature, is therefore incompatible with the principle of the
                                                                           freedom to provide services as laid down and defined in
                                                                           Articles 59 and 60 of the Treaty and as interpreted by the
                                                                           Court of Justice, in particular in its judgment in Gebhard (2).
Action brought on 21 April 1999 by the Commission of
 the European Communities against the Italian Republic                 (b) The Commission considers that the continuing existence
                                                                           in the Italian legislation governing the professions of a
                       (Case C-145/99)                                     provision like Article 17.1.7, which imposes as a precon-
                                                                           dition for enrolment on the lawyers’ professional register
                                                                           the requirement of residence within the district of the
                       (1999/C 188/42)                                     Court in the area of the local Bar Association, despite the
                                                                           recommendation from the National Bar Association the
An action against the Italian Republic was brought before the              local Bar Associations in its Opinion of 29 April 1994 that
Court of Justice on 21 April 1999 by the Commission of the                 that provision be disapplied, is precisely the opposite of
European Communities, represented by Enrico Traversa, Legal                the precise, clear and transparent situations which the
Adviser, and Bernard Mongin, of its legal Service, acting as               Court requires the Member States to provide in order to
Agents, with an address for service in Luxembourg at the office            enable lawyers to determine the rights conferred on them
of Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.                     by Article 52 of the Treaty and to make use of them.


title: Case T-514/09: Judgment of the General Court of 23 November 2011 — bpost v Commission (Public service contracts — Tendering procedure of the PO — Daily transport and delivery of the Official Journal, books, other periodicals and publications — Rejection of the tender of a tenderer and decision to award the contract to another tenderer — Award criteria — Obligation to state the reasons on which the decision is based — Manifest error of assessment — Non-contractual liability)

text:
               14.1.2012

               EN

               Official Journal of the European Union

               C 13/12

         Judgment of the General Court of 23 November 2011 — bpost v Commission
   (Case T-514/09) (1)

   (Public service contracts - Tendering procedure of the PO - Daily transport and delivery of the Official Journal, books, other periodicals and publications - Rejection of the tender of a tenderer and decision to award the contract to another tenderer - Award criteria - Obligation to state the reasons on which the decision is based - Manifest error of assessment - Non-contractual liability)
   2012/C 13/22
   Language of the case: English

      Parties

      Applicant: bpost NV van publiek recht, formerly De Post NV van publiek recht (Brussels, Belgium) (represented by: R. Martens, B. Schutyser and A. Van Vaerenbergh, lawyers)

      Defendant: European Commission (represented by: E. Manhaeve and N. Bambara, Agents, assisted by P. Wytinck, lawyer)

      Re:

   Application, first, for the annulment of the decision of the Publications Office of the European Union, communicated by letter of 17 December 2009, to reject the tender submitted by the applicant under invitation to tender No 10234 ‘Daily transport and delivery of the Official Journal, books, other periodicals and publications’ (OJ 2009/S 176-253034) and award the contract to the successful tenderer, and, second, for damages.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders bpost NV van publiek recht to pay the costs, including those relating to the interlocutory proceedings.

      (1)  OJ C 51, 27.2.2010.


title: Case C-158/01: Reference for a preliminary ruling by the Circuit Court, County of Cork (Ireland), by judgment of that court of 9 March 2001, in the case of Catherine Withers against Samantha Delaney

text:
C 186/6               EN                    Official Journal of the European Communities                                         30.6.2001
(Aid for the production of olive oil)                                         EAGGF (wrongfully, by way of reductions in the monthly
                                                                              advances) but which have still not been collected from
—    Spain refers to the position adopted in Cases C-349/97 (4)               the milk purchasers responsible for the excess produced.
     and C-130/99 (5).
—    In addition, the failings which the Commission detects in         ( 1) 2001/137/EC – OJ L 50 of 21.2.2001, p. 9.
     the system do not in any way prejudice the Community              ( 2) OJ L 196 of 24.7.1997, p. 18.
     budget, given that the total quantity of olive oil produced       ( 3) OJ L 106 of 11.5.1995, p. 4.
     in Spain in the marketing years in question is equal to, or       ( 4) OJ C 370 of 6.12.1997, p. 1.
     greater than, that in respect of which aid has been               ( 5) OJ C 204 of 17.7.1999, p. 23.
     received.                                                         ( 6) Commission Regulation (EC) No 1663/95 laying down detailed
                                                                            rules for the application of Council Regulation (EEC) No 729/70
—    (In the alternative) The Commission must reduce the                    regarding the procedure for the clearance of the accounts of the
     percentage of the financial adjustment, since it has                   EAGGF Guarantee Section (OJ L 158, 8.7.1995, p. 6).
     acknowledged that the situation has improved.                     (7) OJ, English Special Edition, 1970(I), p. 21.
(Aid for the consumption of olive oil)
—    Spain refers to the position adopted in Case C-374/99.
—    (In the alternative) Prior to the letter dated 17 August
     1998, the Spanish authorities were not informed in
     writing that, in respect of the 1996 financial year,
     pursuant to Article 8 of Regulation (EC) No 1663/95 (6),          Reference for a preliminary ruling by the Circuit Court,
     the intention was to exclude a part of the expenditure            County of Cork (Ireland), by judgment of that court of
     from financing in accordance with the applicable pro-             9 March 2001, in the case of Catherine Withers against
     visions, as provided for in Article 5(2)(c) of Council                                      Samantha Delaney
     Regulation (EEC) No 729/70 as amended (7).
                                                                                (Case C-158/01)
(Additional levy on milk)
                                                                                (2001/C 186/10)
—    The action is directed against an adjustment of
     ESP 2 426 259 870 representing default interest, made             Reference has been made to the Court of Justice of the
     on the basis that Spain did not put into effect before            European Communities by a judgment of the Circuit Court,
     1 September 1996 the additional levy on milk for                  Cork (Ireland), of 9 March 2001, which was received at the
     the period 1995/1996 in relation to the purchasers                Court Registry on 17 April 2001, for a preliminary ruling in
     concerned. The Commission requires the Member State               the case of Catherine Withers against Samantha Delaney, on
     concerned to pay default interest in respect of amounts           the following questions:
     not collected from the milk purchasers responsible for the
     excess produced. Spain contends that its only obligation is       I.     Whether on the true interpretation of the provisions of
     to exercise due diligence in collecting the additional                   Directives of 24th April 1972 (72/166/EEC) (1) and of
     levy and to pay the amounts actually received to the                     30th December 1983 (84/5/EEC) (2), Ireland was entitled
     Commission. Payment of the amounts still due from the                    on the 23rd of July 1995 to maintain legislation (Sec-
     producers has been required by the Spanish authorities                   tion 65 of the Road Traffic Act 1961 and the Road Traffic
     from the persons concerned but the latter have brought                   (Compulsory Insurance) Regulations 1962) which did not
     legal proceedings and the national courts have stayed                    make compulsory insurance mandatory for passengers
     execution (requiring by way of security payment of the                   injured in a ‘part of a vehicle, other than a large public
     principal amount plus interest until the date of payment).               service vehicle, unless that part of the vehicle is designed
     Therefore, the national authorities have not been negli-                 and constructed with seating accommodation for passen-
     gent since they cannot prevent the debtors from having                   gers’?
     recourse to the judicial remedies available at national
     level in respect of administrative demands for payment.           II.    If the answer to Question I is that Ireland was not so
     Furthermore, the delay in the judicial proceedings does                  entitled and was in breach of its obligations in this regard,
     not prejudice the Commission, since Spanish legislation                  is Ireland liable in damages to the plaintiff if the plaintiff
     provides in such cases that suspension of the administrat-               fails to get compensation from the MIBI, that is the body
     ive decision requiring payment is to be granted only                     authorised by Ireland under Article 1, para 4 of Council
     where a bank guarantee or equivalent security is provided,               Directive 84/5/EEC, in respect of the death of the
     covering the principal amount together with interest up                  deceased?
     to the date of the final decision.
                                                                       III. If the answer to Question I is that Ireland was in breach
—    (In the alternative) The Commission is not entitled to                   of its obligations, can the Cork Circuit Court proceed
     demand from the Member State concerned default interest                  directly to an award of Frankovich damages against the
     on amounts which the State has already paid to the                       State without applying the Directive against the defaulting
 ---pagebreak--- 30.6.2001                 EN                     Official Journal of the European Communities                                        C 186/7
      emanation of State, or can this only be done after one                First, the CFI’s findings on admissibility virtually set aside the
      has decided that the Directive (because, for example, it              requirement that an applicant must show individual concern.
      fails the tests of justiciability necessary to generate direct        The CFI distorts the relevant facts and applies the wrong legal
      effect) cannot be invoked against the defendant?                      test. If this Court were to adopt the CFI’s reasoning, in
                                                                            particular its speculation on and distortion of the facts, hardly
(1) Council Directive 72/166/EEC of 24 April 1972 on the approxi-           any applicant would be denied standing. Any test which
    mation of the laws of member States relating to insurance against       excludes hardly anyone is not a good legal test, and not
    civil liability in respect of the use of motor vehicles, and to the     supported by the past jurisprudence of the Court.
    enforcement of the obligation to insure against such liability (OJ
    L 103, 2.5.1972, p. 1).
(2) Second Council Directive 84/5/EEC of 30 December 1983 on the            Second, on the substance of the case, the CFI held that, in the
    approximation of the laws of the Member States relating to              context of merger proceedings under Article 66(2) ECSC
    insurance against civil liability in respect of the use of motor        (which is concerned principally with the power potentially to
    vehicles (OJ L 8, 11.1.1984, p. 17).                                    determine prices, control or restrict production and the
                                                                            hindering of effective competition), the Commission is obliged
                                                                            to consider the adequacy or sufficiency of the price actually
                                                                            paid for the acquired undertaking, and to evaluate, in the
                                                                            course of the process and timetable for merger authorisation,
                                                                            whether such price constituted State aid.
Appeal brought on 19 April 2001 by RAG Aktienge-
sellschaft against the judgment delivered on 31 January
2001 by the First Chamber of the Court of First Instance                    This constitutes a major change in the evaluation of mergers
of the European Communities in case T-156/98 (1)                            and represents an unlawful fusion of two distinct procedures,
between RJB Mining plc and Commission of the European                       with different timetables, rights of representation, consultation,
Communities, supported by RAG Aktiengesellschaft and                        and remedies. The CFI did not reason why the price paid could
                    Federal Republic of Germany                             conceivably be State aid. Further, no reason was given
                                                                            why authorisation of the merger should be annulled as a
                           (Case C-169/01 P)                                consequence of a price constituting State aid, in the absence of
                                                                            any of the considerations contained in Article 66(2) ECSC.
                            (2001/C 186/11)
                                                                            There is no legal mandate or authority to inject extraneous
An appeal against the judgment delivered on 31 January 2001                 considerations such as the adequacy of consideration and the
by the First Chamber of the Court of First Instance of the                  existence or otherwise of State aid into the evaluation of
European Communities in case T-156/98 between RJB Mining                    mergers under the ECSC Treaty (or, for that matter, under
plc and Commission of the European Communities, supported                   Regulation 4064/89/EEC (2), as amended). If the judgment
by RAG Aktiengesellschaft and Federal Republic of Germany,                  were to stand, the merger procedure would be subject to
was brought before the Court of Justice of the European                     matters alien to the analysis of market conditions, and
Communities on 19 April 2001 by RAG Aktiengesellschaft,                     undertakings would be burdened by legal uncertainty as to the
established in Essen, Germany, represented by Thomas Sharpe                 criteria to be used in the procedure. Moreover, this uncertainty
QC, and Andreas Weitbrecht and Sven Valker, Rechtsanwälte.                  would not serve to secure the coherent application of compe-
The Appellant claims that the Court should:                                 tition and State aid rules.
—     quash the judgment in full and order RJB to pay all costs.
      Alternatively, the Appellant submits that the judgment                The CFI committed a further serious error of law in annulling
      should be quashed to the extent that it relates to the                the Merger Decision in its entirety, rather than annulling only
      approval of the partial merger between RAG and Preussag               the part relevant to the approval of the RAG/SBW merger. The
      Anthrazit.                                                            annulment of the approval of the RAG/Preussag Anthrazit
                                                                            merger cannot be justified and the judgment lacks any
                                                                            reasoning to that effect.
Pleas in law and main arguments
The judgment sets wholly new criteria for, first, the evaluation            (1) OJ C 358, 21.11.1998, p. 23.
of mergers by the Commission, and, second, any subsequent                   (2) Council Regulation (EEC) No 4064/89 of 21 December 1989 on
challenge to merger decisions. The CFI’s approach is deeply                     the control of concentrations between undertakings (OJ L 395,
flawed.                                                                         30.12.1989, p. 1).


title: Judgment of the Court of 24 September 2014 in Case E-4/14 — EFTA Surveillance Authority v Iceland (Failure by a Contracting Party to fulfil its obligations — Failure to implement — Directive 2007/23/EC on the placing on the market of pyrotechnic articles)

text:
               23.4.2015

               EN

               Official Journal of the European Union

               C 131/7

         JUDGMENT OF THE COURT
   of 24 September 2014
   in Case E-4/14
   EFTA Surveillance Authority v Iceland
   (Failure by a Contracting Party to fulfil its obligations — Failure to implement — Directive 2007/23/EC on the placing on the market of pyrotechnic articles)
   (2015/C 131/07)
   In Case E-4/14, EFTA Surveillance Authority v Iceland — APPLICATION for a declaration that by failing to adopt, or to notify the EFTA Surveillance Authority forthwith of, the measures necessary to implement the Act referred to at point 4 of Chapter XXIX of Annex II to the Agreement on the European Economic Area (Directive 2007/23/EC of the European Parliament and of the Council of 23 May 2007 on the placing on the market of pyrotechnic articles), as adapted to the EEA Agreement by way of Protocol 1 thereto, within the time prescribed, Iceland has failed to fulfil its obligations under Article 21 of that Act and Article 7 of the EEA Agreement, the Court, composed of Carl Baudenbacher, President and Judge-Rapporteur, Per Christiansen and Páll Hreinsson, Judges, gave judgment on 24 September 2014, the operative part of which is as follows:
   The Court hereby:

               1.

               Declares that by failing to adopt the measures necessary to implement the Act referred to at point 4 of Chapter XXIX of Annex II to the Agreement on the European Economic Area (Directive 2007/23/EC of the European Parliament and of the Council of 23 May 2007 on the placing on the market of pyrotechnic articles), as adapted to the Agreement by way of Protocol 1 thereto, within the time prescribed, Iceland has failed to fulfil its obligations under Article 21 of that Act and under Article 7 of the Agreement.

               2.

               Orders Iceland to bear the costs of the proceedings.


title: Case T-319/99: Action brought on 10 November 1999 by the Federación Nacional de Empresas, Instrumentación Ciéntifica, Médica, Técnica y Dental (FENIN) against Commission of the European Communities

text:
C 79/28               EN                      Official Journal of the European Communities                                       18.3.2000
      ORDER OF THE COURT OF FIRST INSTANCE                               Madrid, represented by Ramón Garcia-Gallardo and Gerard
                                                                         Pérez Olmo, of the Madrid and Barcelona Bars respectively, 19
                                                                         Square de Meeûs, Brussels.
                     of 6 December 1999
in Case T-178/99, Sonia Marion Elder and Robert Dale                     The applicant claims that the Court should:
   Elder v Commission of the European Communities (1)
                                                                         — annul the Commission’s decision (SG(99) D/7.040) of
(Transparency — Decision 94/90/ECSC, EC, Euratom, on                         26 August 1999;
public access to Commission documents — Advisory Com-
mittee on Value Added Tax — Decision refusing access to
documents — Withdrawal of contested measure — No need                    — order the Commission to pay the costs.
                          to adjudicate)
                         (2000/C 79/62)                                  Pleas in law and main arguments
                  (Language of the case: English)                        The applicant in the present case is a Spanish federation to
                                                                         which belong practically all the manufacturers, importers and
In Case T-178/99, Sonia Marion Elder and Robert Dale Elder,              distributors of health products in Spain. What all these
residing in Dundee, Scotland, United Kingdom, represented by             undertakings have in common is that they supply health
Scott Crosby, Solicitor, 9 Rond-Point Schuman, Brussels v                products to all Spanish medical institutions in both the public
Commission of the European Communities, represented by                   and private sector.
M.M. Ulrich Wölker and Xavier Lewis, application for annul-
ment of the decision of the Commission of 8 June 1999
refusing the applicants access to the minutes of the Advisory            The applicant is challenging the Commission’s decision not to
Committee on Value Added Tax, the Court of First Instance                take action on the complaint it lodged against the alleged
composed of B. Vesterdorf, President, C.W. Bellamy and M. Vi-            abuse of a dominant position by the Spanish ‘Entes Gestores
laras, Judges, Registrar; H. Jung, has made an order on                  del Sistema Nacional de Salud’ (SNS), in particular the delay in
6 December 1999 the operative part of which is as follows:               paying sums owed to the suppliers of health products. In its
                                                                         complaint, the applicant also referred to other abuses, such as
1. There is no need to adjudicate on the present application.            requests for additional services totally unrelated to the object
                                                                         of the contract and the imposition of maximum purchase
2. The Commission shall bear all the costs.                              prices to the detriment of the technical development of the
                                                                         sector.
(1) OJ C 281 of 2.10.1999.
                                                                         The applicant points out in this regard that sales to the SNS by
                                                                         undertakings belonging to FENIN represent in excess of 80 %
                                                                         of its business, which places the SNS in a dominant position
                                                                         as purchaser.
                                                                         In support of its arguments, the applicant claims that:
Action brought on 10 November 1999 by the Federación
Nacional de Empresas, Instrumentación Ciéntifica, Méd-                  — its rights of defence were infringed inasmuch as no
ica, Técnica y Dental (FENIN) against Commission of the                      investigation file was opened after a thorough analysis of
                    European Communities                                     the complaint;
                        (Case T-319/99)                                  — in the present case, there was a manifest error of assessment
                                                                             of the relevant elements of fact and law, especially of the
                         (2000/C 79/63)                                      nature of the economic activity of the management of the
                                                                             public service provided by the Social Security. The appli-
                                                                             cant states, in this regard, that the defendant has misapplied
                                                                             Articles 82 and 86 of the Treaty by misinterpreting the
                  (Language of the case: Spanish)
                                                                             judgment in Joined Cases C-159 and C-160/91 Poucet and
                                                                             Pistre (1), which, moreover, does not take into account
An action against the Commission of the European Communi-                    more recent case-law which takes a functional approach
ties was brought before the Court of First Instance of the                   to analysing anti-competitive conduct by public-law oper-
European Communities on 10 November 1999 by the Federa-                      ators which are in a manifestly dominant position in
ción Nacional de Empresas, Instrumentación Ciéntifica, Mé-                 such delicate economic areas such as telecommunications,
dica, Técnica y Dental (FENIN), whose registered office is at                postal services or electricity generation.
 ---pagebreak--- 18.3.2000              EN                    Official Journal of the European Communities                                       C 79/29
The applicant also criticizes what it considers to be an                Decision        contested      Refusal by the examiner to regis-
erroneous association made by the Commission between the                before the Board of            ter
principles of solidarity and redistribution within the public           Appeal:
health system, on the one hand, and requests to be supplied
by third-party, independent operators, on the other. In its             Pleas in law:                  — infringement of Article 7(1)(b)
view, extending the scope of distribution as a fundamental
                                                                                of Regulation (EC) No 40/94
element in the principle of solidarity to the point of demanding
sacrifices on the part of third-party suppliers is tantamount to                                       — misapplication of Article 7
placing a charge on the latter which is both discriminatory and                                            (1)(c) of Regulation (EC)
unjustified.                                                                                No 40/94
(1) Joined Cases C-159 and C-160/91 Poucet and Pistre [1993] ECR
    I-637.
                                                                        Action brought on 25 November 1999 by Kasper Lund
                                                                                Nielsen against the European Central Bank
Action brought on 23 November 1999 by Mitsubishi
HiTec Paper Bielefeld GmbH against the Office for Har-
monisation in the Internal Market (Trade marks and                                              (Case T-333/99)
                             Designs)
                                                                                (2000/C 79/65)
                         (Case T-331/99)
                          (2000/C 79/64)                                                  (Language of the case: German)
                                                                        An action against the European Central Bank was brought
                  (Language of the case: German)                        before the Court of First Instance of the European Communities
                                                                        on 25 November 1999 by Kasper Lund Nielsen, Frank-
An action against the Office for Harmonisation in the Internal          furt-am-Main, Germany, represented by Norbert Pflüger, Regi-
Market (Trade marks and Designs) was brought before the                 na Steiner and Silvia Mittländer of the Frankfurt am Main Bar,
Court of First Instance of the European Communities on                  with an address for service in Luxembourg at the office of
23 November 1999 by Mitsubishi HiTec Paper Bielefeld                    Aloyse Schiltz, Association Luxembourgeoise des Employés de
GmbH, Bielefeld, Germany (formerly Stora Carbonless Paper               Banques et d’Assurances, 29 Avenue Monterey, Luxembourg.
GmbH), represented by Ulrike Alice Ulrich, of Cohausz &
Florack, Düsseldorf, with an address for service in Luxembourg
at the office of Ernest T. Freylinger S.A., 234 Route d’Arlon,          The applicant claims that the Court should:
Luxembourg.
                                                                        1. Declare that his dismissal under Article 41 of the Con-
                                                                            ditions of Employment for Staff of the European Central
The applicant claims that the Court should:
                                                                            Bank (hereinafter ‘the CoE’), is ineffective and that the
                                                                            employment relationship between the applicant and the
— annul the decision of the Third Board of Appeal of                        defendant was not dissolved by the dismissal but continues
     8 September 1999 in Case R 175/1999-3 and order the                    to subsist as though notice had not been given;
     Office to publish the Community trade mark application in
     accordance with Article 10 of the Trade Mark Regulation;
                                                                        2. Order the defendant to continue to employ the applicant as
— order the defendant to pay the costs.                                     a documentalist on the contractual terms of employment;
                                                                        3. Order the defendant to pay the basic salary retained under
Pleas in law and main arguments                                             Article 44 of the CoE;
Trade mark:                   Word mark ‘Giroform’ — appli-             4. Declare the decision of the Management Committee, which
                              cation no 533406                              was notified to the applicant by letter of 9 November
                                                                            1999, invalid;
Goods or services:            Paper, cardboard and goods main-
                              ly from these materials included          5. Declare that the disciplinary proceedings brought against
                              in Class 16; printed matter                   the applicant under Article 43 of the CoE were unlawful.


title: Action brought on 26 May 1998 by Eugénio Branco L.da against the Commission of the European Communities (Case T-83/98)

text:
5.9.98               EN                 Official Journal of the European Communities                                  C 278/37
García-Valdecasas and M. Jaeger, Judges; H. Jung,                  Instance of the European Communities on 26 May 1998
Registrar, made an order on 25 June 1998, the operative            by EugeÂnio Branco L.da, whose registered office is at
part of which is as follows:                                       Lisbon, represented by Bolota Belchior, of the Vila Nova
                                                                   de Gaia Bar, with an address for service in Luxembourg at
1. The applications are dismissed as inadmissible.                 the Chambers of Faltz & AssocieÂs, 6 rue Heine,
                                                                   Luxembourg.
2. The applicants shall bear their own costs and shall be
    jointly and severally liable to pay the costs of the
                                                                   The applicant claims that the Court should:
    Council. The Commission shall bear its own costs.
(1) OJ C 94, 22.3.1997.                                            Ð annul the decision of the Commission of the European
                                                                       Communities, dated 17 February 1998, communicated
                                                                       and notified to the applicant on 17 March 1998 by
                                                                       the Departamento para os Assuntos do Fundo Social
                                                                       Europeu (Department of European Social Fund
                                                                       Affairs, the DAFSE') by letter sent on 16 March
     ORDER OF THE COURT OF FIRST INSTANCE                              1998, to suspend payment of the ESF contribution in
                      (Fourth Chamber)                                 respect of files No 87301 P1 (PTE 43 550 366) and
                                                                       No 870302 P3 (PTE 5 809 712) granted to the
                        of 11 June 1998                                applicant by Commission Decision C(87) 860 of
in Case T-173/97, Augusto Fichtner v. Commission of the                30 April 1987,
                  European Communities (1)
(Officials Ð Late staff report Ð Promotion Ð                       Ð order the Commission to pay the costs.
Comparative examination of the merits Ð Compensation
for damage Ð Application manifestly inadmissible or
                                                                   Pleas in law and main arguments adduced in support:
                     entirely unfounded)
                         (98/C 278/82)
                                                                   Ð Breach of the principles of the protection of legitimate
               (Language of the case: Italian)                         expectations and of legal certainty:
In Case T-173/97: Augusto Fichtner, an official of the                 Although the Commission's Decision does not lay
Commission of the European Communities, residing at                    down a time limit, it should nevertheless be adopted
Besozzo (Varese, Italy), represented by Vincenzo Salvatore,            within a reasonable period.
of the Pavía Bar, against Commission of the European
Communities (Agent: Gianluigi Valsesia) Ð application
for (1) annulment of the Commission decision published                 It is clear that the period of 10 years which has
on 13 September 1996 in so far as it refused to place the              elapsed between the relevant date and the present is
applicant on the list of officials most deserving of                   excessive and far exceeds the limits dictated by
promotion under the 1996 promotions procedure and (2)                  common sense and normal expectations.
damages together with interest Ð the Court of First
Instance (Fourth Chamber), composed of P. Lindh,                       The effluxion of that period engendered and
President, K. Lenaerts and J. D. Cooke, Judges; H. Jung,               reinforced the applicant's legitimate expectation that it
Registrar, made an order on 11 June 1998, the operative                would adopt a decision approving the certificates
part of which is as follows:                                           issued by the DAFSE approving the claim for final
                                                                       payment submitted by the applicant.
1. The application is dismissed.
2. Each party is to bear its own costs.                                Since the Commission should have adopted its
                                                                       decision immediately after certification by the DAFSE
                                                                       had come to its knowledge, it is evident that the
(1) OJ C 271, 6.9.1997.
                                                                       period of 10 years (1988 to 1998) is excessive and
                                                                       exceeds the limits dictated by common sense and
                                                                       normal expectations.
                                                                       The Commission overstepped the rules of sound
Action brought on 26 May 1998 by EugeÂnio Branco L.da                  administration.
   against the Commission of the European Communities
                        (Case T-83/98)                                 If Member States are required to submit to the
                         (98/C 278/83)                                 Commission applications for payment within 10
                                                                       months from the end of programmes, failing which
             (Language of the case: Portuguese)                        they may not receive payment of the contribution
                                                                       concerned, then the Commission should issue its
An action against the Commission of the European                       decision approving that application for final payment
Communities was brought before the Court of First                      at least within as many months.
 ---pagebreak--- C 278/38            EN                  Official Journal of the European Communities                                    5.9.98
   The training programmes were carried out, as will                   expenditure for non-teaching expert, administrative
   be shown below, in strict compliance with and                       and secretarial staff for the project' but as specialist
   observance of the conditions imposed by the original                work which, by its very nature is carried out by third
   approval decision.                                                  parties.
Ð Contravention of the law Ð Unlawfulness Ð Error of                   The Decision is based on different criteria and on
   assessment of the facts:                                            whether E. B., L.da, a sub-contractor, is entitled to
                                                                       make legitimate profits.
   The applicant complied completely and rigorously
                                                                       The DAFSE and the Commission always accepted, by
   with all the requirements imposed by the Commission
                                                                       means of the discretion applied in respect of the
   as laid down in the decision approving the application
                                                                       period from 1986 to 1989, profit calculated on the
   and the legislation and, in particular, with that of
                                                                       basis of 50 % of the costs borne by the subcontractors,
   imparting vocational training to 36 and 300 persons
                                                                       so that the profit made by E. B., L.da was within the
   (in the two files, respectively) whose skills were
                                                                       bounds accepted by the DAFSE and the Commission.
   inadequate to permit their entry into the labour
   market.
   The contested decision alleges that certain expenditure
   incurred by the applicant did not fulfil the conditions
   laid down in the approval decision.                             Action brought on 28 May 1998 by Marie Costigan
                                                                            against the Council of the European Union
   For that reason it proposes to suspend final payment                                   (Case T-84/98)
   on the grounds set out in the report drawn up by the                                    (98/C 278/84)
   InspeccËaÄo-Geral de FinancËas (Inspectorate General for
   Finances).
                                                                                (Language of the case: English)
   Thus, the contested decision was based exclusively, by
   reference, to that report of the InspeccËaÄo-Geral de           An action against the Council of the European Union was
   FinancËas.                                                      brought before the Court of First Instance of the European
                                                                   Communities on 28 May 1998 by Marie Costigan,
                                                                   represented by SeÂamas O'Tuathail, instructed by Lehane
   There is therefore an error of assessment of the facts          & Hogan, Solicitors, of 1 Upper Ormond Quay, Dublin 7,
   in the contested decision since the Commission, by              Ireland.
   basing itself exclusively on that report, committed the
   same errors as to the facts as the report itself.               The applicant claims that the Court should:
   The applicant used the payment to trainees of                   Ð annul Decision No 677/97 of the Secretary-General of
   attendance and merit bonuses in order to keep them                  the Council of the European Union of 11 July 1997,
   interested and to maximise learning, a policy which
   gave optimum results and resulted in zero absenteeism,
   none of which is contrary to the original approval              Ð reinstate Marie Costigan to her former post or
   decision.                                                           position with the Council of the European Union
                                                                       without any loss or diminution in her status, salary or
                                                                       incidental benefits,
   The applicant contracted a specialist organisation to
   provide assistance and to provide greater quality to
                                                                   Ð annul all subsequent decisions following on or giving
   the courses taught.
                                                                       effect in any way to or emanating from Decision
                                                                       No 677/97, mentioned above, made by or on behalf of
                                                                       the Secretary-General of the Council of the European
   The applicant subcontracted the services of that
                                                                       Union, his servants or agents,
   organisation, engaging teaching staff and concluding
   contracts for expert educational assessments and
   vocational guidance and budget management services.             Ð annul the decision made on 14 June 1996 by the
                                                                       Secretary-General of the Council of the European
                                                                       Union to refer the case of the applicant to the
   Reference to such subcontracting, which is permitted                Invalidity Committee,
   by the legislation and by the Commission's approval
   decision, was already to be found in the application,
   at least implicity, inasmuch as the estimated costs             Ð declare the conclusions of the Invalidity Committee
   associated with such work did not appear as                         arrived at on 9 July 1997 to be null and void,


title: Action brought on 10 August 1998 by Francis Panichelli against the European Parliament (Case T-130/98)

text:
24.10.98              EN                 Official Journal of the European Communities                                 C 327/31
Action brought on 10 August 1998 by Francis Panichelli              According to the applicant, the first ground for complaint
               against the European Parliament                      is that by not promoting him to Grade A 4, the defendant
                                                                    manifestly breached the conditions of his recruitment, and
                       (Case T-130/98)                              the rules it imposed on itself.
                         (98/C 327/54)
                                                                    The second ground is that the appointing authority failed
                (Language of the case: French)                      to draw up the applicant's staff reports, in breach of the
                                                                    aforementioned rules and principles, thus preventing the
                                                                    committee responsible for deciding on promotions from
                                                                    carrying out an objective examination of the applicant's
An action against the European Parliament was brought               file and ensuring a genuine comparison of the merits of
before the Court of First Instance of the European                  each of the members of staff concerned, thus depriving the
Communities on 10 August 1998 by Francis Panichelli,                applicant of numerous career opportunities within the
residing in Wezembeek-Oppem (Belgium), represented by               institution.
Eric Boigelot, of the Brussels Bar, with an address for
service in Luxembourg at the Chambers of Louis Schiltz, 2
Rue du Fort Rheinsheim.
                                                                    The applicant concludes that he has suffered considerable
                                                                    material loss as a result of those procedural flaws since,
                                                                    on the one hand, his remuneration is lower than what he
The applicant claims that the Court should:                         could reasonably have anticipated and, on the other, he is
                                                                    denied any further promotion from the new grade and
                                                                    step which he could have held. Ex aequo et bono, that
                                                                    loss, both material and non-material, is reasonably
Ð annul the implicit decision rejecting the request                 estimated at BEF 250 000.
    submitted by him on 11 July 1997, as a result of
    which he was not classified in Grade A 4 with effect
    from 1 January 1993, was not granted the promotion
    he requested and his staff reports for the periods
    1993Ð1994 and 1995Ð1996 were not drawn up;
                                                                    Action brought on 12 August 1998 by Francis Panichelli
Ð annul the implicit rejection on 26 January 1998 of the
                                                                                against the European Parliament
    complaint he submitted against the implicit decision
    rejecting his requests of 11 July 1997;                                                 (Case T-131/98)
                                                                                (98/C 327/55)
Ð order the defendant to pay him           the sum of BEF
    250 000, subject to amendment in       the course of the
    proceedings, by way of damages         in respect of his                        (Language of the case: French)
    aggregate material and non-material    loss;
                                                                    An action against the European Parliament was brought
Ð order the defendant to pay all the costs in any event.            before the Court of First Instance of the European
                                                                    Communities on 12 August 1998 by Francis Panichelli,
                                                                    residing in Wezembeek-Oppem (Belgium), represented by
                                                                    Eric Boigelot, of the Brussels Bar, with an address for
Pleas in law and main arguments adduced in support:                 service in Luxembourg at the Chambers of Louis Schiltz, 2
                                                                    Rue du Fort Rheinsheim.
The applicant, a member of the temporary staff in Grade
A 5, had requested the reclassification of his post as Grade        The applicant claims that the Court should:
A 4 with effect from 1 January 1993 and, in the event of
refusal, written notification of the reasons why the
undertaking to that effect given by the Party of European
Socialists at the time of his recruitment was not respected         Ð annul the decision of the Bureau of the Group of
and, in the alternative, re-examination of the list of                   the Party of European Socialists terminating the
proposed promotions for 1997, which was drawn up in                      applicant's contract as a member of the temporary
breach of Article 6.1.2 of the internal rules of the party's             staff with effect from the evening of 2 October 1998,
secretariat, inter alia because no staff reports were drawn              communicated to the applicant on 2 July 1998 by a
up for the periods 1993Ð1994 and 1995Ð1996.                              letter from the President of the Party of European