title: Case C-37/12 P: Order of the Court (Sixth Chamber) of 21 February 2013 — Saupiquet SAS v European Commission (Appeal — Common customs tariff — Tariff quota — Sunday closure of customs offices — Infringement of the principle of equal treatment — Accountability)

text:
               13.4.2013

               EN

               Official Journal of the European Union

               C 108/8

         Order of the Court (Sixth Chamber) of 21 February 2013 — Saupiquet SAS v European Commission
   (Case C-37/12 P) (1)

   (Appeal - Common customs tariff - Tariff quota - Sunday closure of customs offices - Infringement of the principle of equal treatment - Accountability)
   2013/C 108/14
   Language of the case: French

      Parties

      Appellant: Saupiquet SAS (represented by: R. Ledru, avocat)

      Other party to the proceedings: European Commission (represented by: B.-R. Killmann and L. Keppenne, Agents)

      Re:

   Appeal against the judgment of the General Court (Fifth Chamber) of 24 November 2011 in Case T-131/10 Saupiquet v Commission by which the General Court dismissed an application for annulment of Commission Decision C(2009) 10005 final of 16 December 2009, holding that refunding import duties on canned tuna fish originating in Thailand to the appellant is not justified — Closure of customs offices on Sundays in certain Member States — Infringement of the principle of equal treatment — Incorrect interpretation

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Saupiquet SAS is ordered to pay the costs.

      (1)  OJ C 89, 24.3.2012.


title: Case T-130/07: Action brought on 19 April 2007 — Aughinish Alumina v Commission

text:
               23.6.2007

               EN

               Official Journal of the European Union

               C 140/35

         Action brought on 19 April 2007 — Aughinish Alumina v Commission
   (Case T-130/07)
   (2007/C 140/60)
   Language of the case: English
   Parties

      Applicant: Aughinish Alumina Ltd (Askeaton, Ireland) (represented by: J. Handoll, C. Waterson, Solicitors)

      Defendant: Commission of the European Communities
   Form of order sought
   In the light of its submissions, AAL respectfully requests the Court:

               —

               to annul the Commission decision of February 2007 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon Region and in Sardinia insofar as it relates to AAL;

               —

               to order the Commission to pay the costs incurred by AAL in the current proceedings.

         Pleas in law and main arguments
   By means of this application the applicant requests the partial annulment of Commission Decision C(2007)286 final of 7 February 2007 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon Region and in Sardinia respectively implemented by France, Ireland and Italy, insofar as it relates to Aughinish Alumina Ltd (hereinafter ‘AAL’).
   AAL submits that there are eight grounds for annulment in support of its pleas:
   First, the Commission has failed, according to the applicant, to appreciate that the exemption falls within the nature and logic of the Irish tax regime and hence does not constitute aid.
   Second, the applicant claims that the Commission has failed to analyse properly the relevant markets and their competitive structure. In circumstances where the Commission had itself earlier accepted that there was no distortion of competition, and in the light of the fact that the Council had authorised the exemptions until 31 December 2006, the applicant contends that it was incumbent on the Commission to demonstrate that it had carried out a thorough economic analysis which clearly demonstrated that there was an actual or threatened distortion of competition. The applicant therefore submits that the Commission failed to establish that the exemption constituted aid.
   Third, the applicant advances that should the exemption nonetheless be considered to constitute aid, the Commission has failed to treat the aid in question as existing aid falling under Article 88(1) EC. The aid was the subject of a binding commitment given before Ireland's accession to the European Communities, notified in January 1983. As the Commission did not act until 17 July 2000, the ten-year limitation period was exceeded and recovery was, thus, precluded. The applicant claims thus that the aid cannot be characterised as an aid scheme.
   Fourth, the applicant puts forward that the Commission should have had regard to the overall acquis on excise harmonisation, in order to determine whether and how to exercise its powers under the State aid provisions of the EC Treaty. The contested decision constitutes a serious breach of the principle of legal certainty since it allegedly undermines authorisations granted by the Council under Article 93 EC, on the basis of a Commission proposal. Moreover, the Commission has allegedly failed to appreciate that the Council measures taken on the basis of Article 93 EC constituted lex specialis that should have prevailed over any inconsistent application of the State aid rules. In addition, the Commission has failed, according to the applicant's contentions, to use the procedures available to it under Article 8 of Directive 92/81/EEC to resolve State aid or other concerns, or indeed to seek the annulment of relevant Council decisions and has, hence, undermined the effet utile of the Council measures.
   Fifth, the applicant claims that in adopting the contested decision, the Commission has failed to take account of the fundamental requirements of Articles 3 and 157 EC, to strengthen competitiveness of Community industry and to ensure that the conditions necessary for the competitiveness of the Community's industry exist.
   Sixth, in finding that 20 % of the exemption constituted aid, the Commission has allegedly failed to appreciate that the applicant was subject to a number of environmental obligations and to consider measures which would have had the same incentive effect as a requirement to pay a significant proportion of the national tax.
   Seventh, the applicant sustains that the contested decision violates the principles of protection of legitimate expectations and of legal certainty.
   Eighth, the excessive length of the procedure under Article 88(2) EC contravenes the principles of good administration and of legal certainty and is even more serious, according to the applicant, since the Commission had, before initiating the procedure, already failed to act in relation to the 1983 notification.


title: Judgment of the Court of First Instance 20 March 2002 in Case T-175/99: UPS Europe SA v Commission of the European Communities (Competition — Abuse of a dominant position — Postal sector — Service in the general economic interest — Use of income deriving from a reserved market — Acquisition of joint control of an undertaking active in the non-reserved market — Statement of reasons)

text:
C 144/38                EN                     Official Journal of the European Communities                                       15.6.2002
1.    Orders that the fine imposed on the applicant by Article 3(a)       1.    Dismisses the application;
      of Commission Decision 1999/60/EC of 21 October 1998
      relating to a proceeding under Article 85 of the EC Treaty
      (Case No IV/35.691/E-4: — Pre-Insulated Pipe Cartel) be             2.    Orders the applicants to bear their own costs and pay those of
      reduced to EUR 65 000 000;                                                the Commission;
2.    Dismisses the remainder of the application;                         3.    Orders the intervener to bear its own costs.
3.    Orders the applicant to bear its own costs and to pay 90 % of
      the costs incurred by the Commission;
                                                                          (1) OJ C 246 of 28.8.1999.
4.    Orders the Commission to pay 10 % of its own costs.
(1) OJ C 121 of 1.5.1999.
                                                                              JUDGMENT OF THE COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                                         20 March 2002
                           21 March 2002
                                                                          in Case T-175/99: UPS Europe SA v Commission of the
                                                                                European Communities (1)
in Case T-131/99: Michael Hamilton Shaw and Timothy
John Falla v Commission of the European Communities (1)
                                                                          (Competition — Abuse of a dominant position — Postal
                                                                          sector — Service in the general economic interest — Use of
(Competition — Beer supply agreements — Individual                        income deriving from a reserved market — Acquisition of
exemption — Article 85(3) of the EC Treaty (now                           joint control of an undertaking active in the non-reserved
                         Article 81(3) EC))                                               market — Statement of reasons)
                          (2002/C 144/80)                                                          (2002/C 144/81)
                    (Language of the case: English)                                          (Language of the case: English)
In Case T-131/99, Michael Hamilton Shaw, residing in Wix-
ford, Alcester, Warwickshire (United Kingdom), and Timothy                In Case T-175/99, UPS Europe SA, established in Brussels
John Falla, residing in Brighton (United Kingdom), represented            (Belgium), represented by T. R. Ottervanger and D. Arts,
by J. H. Maitland-Walker, Solicitor, with an address for service          lawyers, with an address for service in Luxembourg, v Com-
in Luxembourg, v Commission of the European Communities                   mission of the European Communities (Agents: B. Doherty
(Agents: P. Oliver, K. Wiedner and N. Khan), supported by                 and K. Wiedner), supported by Deutsche Post AG, established
Whitbread plc, established in London (United Kingdom),                    in Bonn (Germany), represented by J. Sedemund, lawyer, with
represented by N. Green QC and J. Flynn and M. Lowe,                      an address for service in Luxembourg: Application for the
Solicitors, with an address for service in Luxembourg: Appli-             annulment of Commission Decision SG (99) D/4155 of
cation for annulment of Commission Decision 1999/230/EC                   10 June 1999 rejecting the applicant’s complaint of 8 June
of 24 February 1999 relating to a proceeding pursuant to                  1998 to the extent to which it relates to Article 82 EC and to
Article 85 of the EC Treaty (Case No IV/35.079/F3 —                       the partial acquisition of DHL International Ltd by Deutsche
Whitbread) (OJ 1999 L 88, p. 26), the Court of First Instance             Post AG, the Court of First Instance (Fourth Chamber, Extended
(Third Chamber), composed of: J. Azizi, President, K. Lenaerts            Composition), composed of: P. Mengozzi, President, R. Garcı́a-
and M. Jaeger, Judges; J. Palacio González, Administrator, for           Valdecasas, V. Tiili, R. M. Moura Ramos and J. D. Cooke,
the Registrar, has given a judgment on 21 March 2002, in                  Judges; D. Christensen, Administrator, for the Registrar, has
which it:                                                                 given a judgment on 20 March 2002, in which it:
 ---pagebreak--- 15.6.2002              EN                      Official Journal of the European Communities                                        C 144/39
1.    Dismisses the application;                                          3.    Orders the intervener to bear its own costs.
2.    Orders the applicant to bear its own costs and to pay those of
      the defendant and the intervener.                                   (1) OJ C 6 of 8.1.2000.
(1) OJ C 281 of 2.10.1999.
                                                                              JUDGMENT OF THE COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                26 February 2002
                          21 March 2002
                                                                          in Case T-323/99: Industrie Navali Meccaniche Affini
                                                                          SpA (INMA) and Italia Investimenti SpA (Itainvest) v
in Case T-231/99: Colin Joynson v Commission of the                              Commission of the European Communities (1)
                   European Communities (1)
                                                                          (State aids — Shipbuilding — Meaning of aid — Lack of
(Competition — Beer supply agreements — Individual                                                     reasoning)
                exemption — Article 81(3) EC)
                                                                                (2002/C 144/83)
                         (2002/C 144/82)
                   (Language of the case: English)                                            (Language of the case: Italian)
In Case T-231/99, Colin Joynson, residing in Manchester
(United Kingdom), represented by B. Bedford, Barrister,                   In Case T-323/99, Industrie Navali Meccaniche Affini SpA
instructed by Messrs Ferdinand Kelly, Solicitors, v Commission            (INMA), in liquidation, established in La Spezia (Italy), rep-
of the European Communities (Agents: K. Wiedner and                       resented by S. Capparucci, Italia Investimenti SpA (Itainvest),
N. Khan), supported by Bass plc, established in London (United            established in Rome (Italy), represented in these proceedings
Kingdom), represented by M. Farquharson, J. Block and                     by G. M. Roberti and F. Sciaudone, lawyers, with an address
N. Green, Solicitors, with an address for service in Luxembourg:          for service in Luxembourg, v Commission of the European
Application for annulment of Commission Decision 1999/                    Communities (Agents: K.-D. Borchardt and, initially, A. Abate
473/EC of 16 June 1999 relating to a proceeding pursuant to               and E. Cappelli, and, subsequently, Abate and G. Conte):
Article 81 [EC] (Case IV/36.081/F3 — Bass) (OJ 1999 L 186,                Application for annulment of Commission Decision 2000/
p. 1), the Court of First Instance (Third Chamber), composed              262/EC of 20 July 1999 on State aid granted by Italy to the
of: J. Azizi, President, K. Lenaerts and M. Jaeger, Judges;               INMA shipyard (OJ 2000 L 83, p. 21), Court of First Instance
J. Palacio González, Administrator, for the Registrar, has given         (Fifth Chamber, Extended Composition), composed of:
a judgment on 21 March 2002, in which it:                                 P. Lindh, President, R. Garcı́a-Valdecasas, J. D. Cooke, M. Vilaras
                                                                          and N. J. Forwood, Judges; J. Palacio González, Administrator,
                                                                          for the Registrar, has given a judgment on 26 February 2002,
                                                                          in which it:
1.    Dismisses the application;
2.    Orders the applicant to bear his own costs and pay those of the     1.    Annuls Commission Decision 2000/262/EC of 20 July 1999
      Commission;                                                               on State aid granted by Italy to the INMA shipyard;


title: Judgment of the Court (Fifth Chamber) of 21 September 1999 in Case C-392/96: Commission of the European Communities v Ireland (Environment - Directive 85/337/EEC - Assessment of the effects of certain public or private projects - Setting of thresholds)

text:
C 366/6                 EN                      Official Journal of the European Communities                                       18.12.1999
1. Article 18(1) of Council Directive 93/37/EEC of 14 June 1993            implementation of the principle of equal treatment for men
    concerning the coordination of procedures for the award of public      and women as regards access to employment, vocational
    works contracts, as amended by European Parliament and                 training and promotion, and working conditions (OJ 1976
    Council Directive 97/52/EC of 13 October 1997 amending                 L 39, p. 40) — the Court (Fifth Chamber), composed of:
    Directives 92/50/EEC, 93/36/EEC and 93/37/EEC concerning               J.-P. Puissochet, President of the Chamber, P. Jann, J.C. Moitin-
    the coordination of procedures for the award of public service         ho de Almeida (Rapporteur), C. Gulmann and D.A.O. Edward,
    contracts, public supply contracts and public works contracts          Judges; S. Alber, Advocate General; R. Grass, Registrar, has
    respectively must be interpreted as meaning that the contracting       given a judgment on 16 September 1999, in which it has
    authority is not required to award the contract to the only            ruled:
    tenderer judged to be suitable.
                                                                           The principle of equal pay laid down in Article 119 of the EC Treaty
2. Article 18(1) of Directive 93/37, as amended by Directive               (Articles 117 to 120 of the EC Treaty have been replaced by
    97/52, can be relied on by an individual before the national           Articles 136 EC to 143 EC) does not preclude the making of a
    courts.                                                                lump-sum payment exclusively to female workers who take maternity
                                                                           leave where that payment is designed to offset the occupational
(1) OJ No C 94 of 28.3.1998.                                               disadvantages which arise for those workers as a result of their being
                                                                           away from work.
                                                                           (1) OJ No C 258 of 15.8.1998.
                 JUDGMENT OF THE COURT
                          (Fifth Chamber)
                                                                                JUDGMENT OF THE COURT
                      of 16 September 1999
                                                                                (Fifth Chamber)
in Case C-218/98 (reference for a preliminary ruling from
the Conseil de Prud’hommes du Havre): Oumar Dabo                                                  of 21 September 1999
Abdoulaye and Others v Régie Nationale des Usines
                           Renault SA (1)                                  in Case C-392/96: Commission of the European Communi-
                                                                                ties v Ireland (1)
(Interpretation of Article 119 of the EC Treaty (Articles 117
to 120 of the EC Treaty have been replaced by Articles 136                 (Environment — Directive 85/337/EEC — Assessment of
EC to 143 EC) and of Directives 75/117/EEC and                             the effects of certain public or private projects — Setting of
76/207/EEC — Collective agreement providing for an allow-                                                thresholds)
     ance for pregnant women going on maternity leave)
                                                                                (1999/C 366/10)
                          (1999/C 366/09)
                                                                                (Language of the case: English)
                    (Language of the case: French)
(Provisional translation; the definitive translation will be published     In Case C-392/96: Commission of the European Communities
                   in the European Court Reports)                          (Agent: Richard B. Wainwright) v Ireland (Agent: Michael
                                                                           A. Buckley, assisted by Philip O’Sullivan and Niamh Hyland)
In Case C-281/98: reference to the Court under Article 177 of              — application for a declaration that, by failing to adopt all the
the EC Treaty (now Article 234 EC) from the Conseil de                     necessary measures to ensure the correct transposition of
Prud’hommes du Havre, France, for a preliminary ruling in the              Council Directive 85/337/EEC of 27 June 1985 on the assess-
proceedings pending before that court between Oumar Dabo                   ment of the effects of certain public and private projects on
Abdoulaye and Others and Régie Nationale des Usines Renault                the environment (OJ 1985 L 175, p. 40), Ireland has failed to
SA — on the interpretation of Article 119 of the EC Treaty                 fulfil its obligations under that directive, in particular Article 12
(Articles 117 to 120 of the EC Treaty have been replaced by                thereof, and under the EC Treaty — the Court (Fifth Chamber),
Articles 136 EC to 143 EC), of Council Directive 75/117/EEC                composed of: J.-P. Puissochet, President of the Chamber,
of 10 February 1975 on the approximation of the laws of the                J.C. Moitinho de Almeida, C. Gulmann, D.A.O. Edward and
Member States relating to the application of the principle of              L. Sevón (Rapporteur), Judges; A. La Pergola, Advocate General;
equal pay for men and women (OJ 1975 L 45, p. 19) and of                   L. Hewlett, Administrator, for the Registrar, has given a
Council Directive 76/207/EEC of 9 February 1976 on the                     judgment on 21 September 1999, in which it:
 ---pagebreak--- 18.12.1999              EN                        Official Journal of the European Communities                                               C 366/7
1. Declares that, by not adopting, for the classes of projects covered       Court (Fifth Chamber), composed of: J.-P. Puissochet, President
    by points 1(d) and 2(a) of Annex II to Council Directive                 of the Chamber, P. Jann, D.A.O. Edward (Rapporteur), L. Sevón
    85/337/EEC of 27 June 1985 on the assessment of the effects              and M. Wathelet, Judges; A. Saggio, Advocate General; H. von
    of certain public and private projects on the environment, the           Holstein, Deputy Registrar, has given a judgment on 21 Sep-
    measures necessary to transpose Article 4(2) of that directive           tember 1999, in which it has ruled:
    correctly, and by not transposing Articles 2(3), 5 and 7 thereof,
    Ireland has failed to fulfil its obligations under that directive;
                                                                             1. On a proper construction of Article 93(1)(a) of Council Regu-
2. Dismisses the remainder of the application;                                   lation (EEC) No 1408/71 of 14 June 1971 on the application
                                                                                of social security schemes to employed persons, to self-employed
3. Orders Ireland to pay the costs.                                              persons and to members of their families moving within the
                                                                                Community, as amended and updated by Council Regulation
                                                                                (EEC) No 2001/83 of 2 June 1983, where an injury has been
                                                                                sustained in the territory of a Member State and has given rise
(1) OJ No C 40 of 8.2.1997.                                                      to the payment of social security benefits to the victim or those
                                                                                entitled under him by a social security institution (within the
                                                                                meaning of that regulation) of another Member State, the rights
                                                                                of the victim, or those entitled under him, against the person who
                                                                                caused the injury and to which that institution may be subrogated,
                                                                                and the requirements which must be satisfied to enable an action
                                                                                in damages to be brought before the courts of the Member State
                                                                                where the injury was sustained, are to be determined in accordance
                                                                                with the law of that State, including any applicable rules of
                                                                                private international law.
                 JUDGMENT OF THE COURT
                          (Fifth Chamber)                                    2. On a proper construction of Article 93(1)(a) of Regulation
                                                                                No 1408/71, as amended and updated by Regulation
                                                                                No 2001/83, the subrogation of a social security institution
                      of 21 September 1999                                       (within the meaning of that regulation) governed by the law of a
                                                                                Member State to the rights of the victim, or those entitled under
in Case C-397/96 (reference for a preliminary ruling from                        him, against a person who, in the territory of another Member
the Landgericht Trier): Caisse de Pension des Employés                           State, caused an injury which gave rise to the payment by that
Privés v Dieter Kordel, Rainer Kordel, Frankfurter Allianz                       institution of social security benefits, and the extent of the rights
                       Versicherungs AG (1)                                      to which that institution is subrogated, are to be determined in
                                                                                accordance with the law of the Member State to which the
                                                                                institution belongs, provided always that the exercise of the right
(Social security — Institution responsible for benefits —                        to subrogation provided for by that law cannot exceed the rights,
  Right of action against liable third party — Subrogation)                      under the law of the Member State where the injury was
                                                                                sustained, of the victim, or those entitled under him, against the
                                                                                person responsible for causing the injury.
                          (1999/C 366/11)
                   (Language of the case: German)                            3. It is for the court hearing an action to identify and apply the
                                                                                relevant provisions of the legislation of the Member State to
                                                                                which the institution responsible for benefits belongs, even if
                                                                                those provisions exclude or limit the subrogation of such an
(Provisional translation; the definitive translation will be published           institution to the rights of the recipient of the benefits against the
                   in the European Court Reports)                                person who caused the injury, or exclude or limit the exercise of
                                                                                those rights by the institution so subrogated.
In Case C-397/96: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Landgericht Trier
(Regional Court, Trier), Germany, for a preliminary ruling in
the proceedings pending before that court between Caisse de
Pension des Employés Privés and Dieter Kordel, Rainer Kordel,                (1) OJ No C 40 of 8.2.1997.
Frankfurter Allianz Versicherungs AG — on the interpretation
of Article 93 (1) (a) of Council Regulation (EEC) No 1408/71
of 14 June 1971 on the application of social security schemes
to employed persons, to self-employed persons and to mem-
bers of their families moving within the Community, as
amended and updated by Council Regulation (EEC)
No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6) — the


title: Case T-243/99: Action brought on 19 October 1999 by Marie-Laurence Buisson against the Commission of the European Communities

text:
8.1.2000               EN                    Official Journal of the European Communities                                          C 6/33
Action brought on 19 October 1999 by Marie-Laurence                     — Breach by the Commission of its obligation concerning the
Buisson against the Commission of the European Com-                          time-limit and the manner of correction of the alleged
                            munities                                         error in its letter of 30 April 1999.
                                                                        — Breach of the principle of good administration arising
                         (Case T-243/99)                                     from the Commission’s failure to take every care to ensure
                                                                             that the letter which it alleged was sent to the applicant on
                                                                             5 May 1999 actually reached its intended destination.
                          (2000/C 6/58)
                  (Language of the case: English)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 19 October 1999 by Marie-                       Action brought on 18 October 1999 by Autobedrijf
Laurence Buisson, represented by Ian S. Forrester QC at the             Diepenmaat V.O.F. against the Commission of the Euro-
Scots Bar, Elisabethann Wright, Barrister of the Inn of Court                                    pean Communities
of Northern Ireland, Fiona M. Murray, Barrister of the Middle
Temple, and Fredrik Lindblom, Biträdande Jurist, with an
address for service in Luxembourg at the Chambers of Maître                                        (Case T-248/99)
Aloyse May, 31 Grand rue, BP 144.
                                                                                (2000/C 6/59)
The applicant claims that the Court should:
                                                                                (Language of the Case: Dutch)
— annul the decision of the Commission of July 13, 1999
    rejecting the applicant’s appeal against her exclusion from
    the written tests in Open Competition COM/A/10/98;                  An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
                                                                        European Communities on 18 October 1999 by Autobedrijf
— award pecuniary damages in the sum of BEF 100 000;                    Diepenmaat V.O.F., of Borne (Netherlands), represented by
                                                                        H.W. Kesler, of the Enschede Bar, with an address for service
— order the Commission to pay the costs.                                in Luxembourg at the Chambers of K. Manhaeve, 56-58 Rue
                                                                        Charles Martel.
                                                                        The applicant claims that the Court should:
Pleas in law and main arguments
                                                                        (a) annul the Commission’s decision (C(1999) 2539 final) (1)
The purpose of the action is to challenge the legality of a                  of 20 July 1999 concerning State aid granted by the
decision by the Commission rejecting an appeal by the                        Netherlands to 633 service stations in the region bordering
applicant against her exclusion from the second stage of the                 Germany;
selection procedure in Open Competition COM/A/10/98. In
support of her case, the applicant puts forward the following           (b) order the Commission to pay the costs.
pleas in law:
— Breach of the applicant’s legitimate expectation that she             Pleas in law and main arguments
    would be invited to participate in the written tests. That
    expectation is clearly established by the Commission’s
                                                                        This case is linked to Case T-210/99. The applicant claims,
    letter of 30 April 1999. According to the applicant, given
                                                                        inter alia, that the Commission has misinterpreted the terms
    that Point IV.5 of the Notice of Competition provided that
    a list of those candidates who had fulfilled the basic              ‘undertaking’ and ‘aid’ in assuming that aid granted by the
                                                                        authorities and aid granted by a private individual are so similar
    conditions for admission and obtained a mark which was
    one of the 200 highest in the pre-selection tests would             in nature that the matter necessarily involves cumulation in
    be drawn up and that Point VIII.5 provided that those               accordance with the de minimis rule.
    candidates would be admitted to the written tests. the letter
    could only be interpreted as meaning that she was among
    the 200 candidates to be admitted to the written tests and          (1) OJ L 280 of 30.10.1999, p. 87.
    that the Commission was checking to ensure that her
    application fulfilled the basic conditions for admission laid
    down in Point III of the Notice of Competition.


title: Case T-43/00: Action brought on 28 February 2000 by Javier Martinez Lara and Milva Urbán Penón against the Council of the European Union

text:
C 122/40               EN                     Official Journal of the European Communities                                     29.4.2000
— infringement of Articles 4 and 27 to 29 of the Staff                   — order the defendant to give all due legal effect to the
    Regulations;                                                             reestablishment of the rights of the applicant;
— a mistake of law consisting in the absence of any objective            — otherwise, order the defendant to make good both the
    justification for using the date of 2 October 1997 as a                  material and non-material damage suffered, provisionally
    criterion for taking into consideration the persons working              evaluated at EUR 1, together with default interest as from
    in the Schengen Secretariat for the purposes of their being              1 May 1999;
    integrated into the General Secretariat of the Council;
                                                                         — order the defendant to pay all the costs.
— breach of the principle of non-discrimination;
— infringement of Article 7 of the Staff Regulations and of              Pleas in law and main arguments
    the interest of the service.
                                                                         The applicant passed competition LA/365 of the Council with
                                                                         a view to the setting-up of a list for the recruitment of
As regards the annulment of the individual decisions, the                Portuguese mother-tongue translators. She challenges the
applicant pleads:                                                        decisions to appoint four former agents of the Schengen
                                                                         Secretariat to LA 7 posts in the Portuguese division of the
— breach of the principle of legitimate expectations;                    Council’s Language Service. Those appointments imply a
                                                                         decision to refuse to take into account the applicant’s candi-
— breach of the principle of having regard for the welfare of            dature and constitute individual measures implementing
    officials and of the principle of sound management.                  Decision 1999/307/EC. In her application, the applicant
                                                                         alleges the unlawfulness of the decision and of the individual
                                                                         decisions taken by the Council.
                                                                         The arguments put forward by the applicant are similar to
                                                                         those put forward in Case T-37/00.
Action brought on 24 February 2000 by Virginia Joaquim
       Matos against Council of the European Union
                         (Case T-38/00)
                                                                         Action brought on 28 February 2000 by Javier Martinez
                                                                         Lara and Milva Urbán Penón against the Council of the
                        (2000/C 122/61)                                                         European Union
                                                                                (Case T-43/00)
                   (Language of the case: French)
                                                                                (2000/C 122/62)
An action against Council of the European Union was brought
before the Court of First Instance of the European Communities
on 24 February 2000 by Virgı́nia Joaquim Matos, residing in                                (Language of the case: French)
Montijo, Portugal, represented by Georges Vandersanden and
Laure Levi, of the Brussels Bar, with an address for service in
Luxembourg at Société de Gestion Fiduciaire SARL, 2-4 Rue                An action against the Council of the European Union was
Beck.                                                                    brought before the Court of First Instance of the European
                                                                         Communities on 28 February 2000 by Javier Martinez Lara
                                                                         and Milva Urbán Penón, residing at Brussels, represented by
The applicant claims that the Court should:                              Jean-Noël Louis, Greta-Françoise Parmentier and Véronique
                                                                         Peere, of the Brussels Bar, with an address for service in
— annul decision 1999/307 of the Council of 1 May 1999                   Luxembourg at the offices of the Société de Gestion Fiduciaire
    laying down the detailed arrangements for the integration            SARL, 2-4 Rue Beck.
    of the Schengen secretariat into the General Secretariat of
    the Council;                                                         The applicants claim that the Court should:
— annul the decisions to appoint four persons to LA 7 posts              — annul the decision of the appointing authority of 28 July
    in the Portuguese Division of the Council’s Language                     1999 to reject the applicants’ application to define Compe-
    Service;                                                                 tition B/260 as a ‘non-specialised’ competition concerning
                                                                             passage from one category to another for the purpose of
— annul the subsequent implied decisions not to appoint the                  drawing up a reserve list of administrative assistants of
    applicant to one of those posts;                                         Grade B5;
 ---pagebreak--- 29.4.2000             EN                       Official Journal of the European Communities                                  C 122/41
— annul the jury’s decision not to put their names on the list                   Removal from the register of Case T-193/98 (1)
    of successful candidates in Internal Competition B/260:
                                                                                (2000/C 122/63)
— order the defendant to pay the costs.
                                                                                (Language of the case: Greek)
Pleas in law and main arguments                                           By order of 18 February 2000 the President of the Second
                                                                          Chamber of the Court of First Instance of the European
                                                                          Communities has ordered the removal from the register of
The applicants state that the Council had organised an Internal           Case T-193/98: Vassilis Boucouvalas v European Parliament.
Competition B/260 concerning passage from one category to
another on the basis of tests, in order to fill three administrative
assistants’ posts. After the tests had been marked by the jury,           (1) OJ C 48 of 20.2.1999.
by letters of 27 November 1998, the Directorate for Personnel
and Administration informed the applicants that they had
obtained 109 and 105 marks respectively in the written and
oral tests overall, which would have allowed them to be
included in fifth and sixth places on the list of suitable
candidates. In accordance with the footnote on page 1 and
with Chapter V of the notice of competition, the jury did not
place them on the list of suitable candidates, since the number
of successful candidates cannot exceed the number of posts to                     Removal from the register of Case T-88/99 (1)
be filled, namely three posts.
                                                                                (2000/C 122/64)
During the pre-litigation stage, the applicants claimed that,
according to the information at their disposal, only one of the
three posts to be filled was occupied by one of the successful                               (Language of the case: Greek)
candidates and that, therefore, the competition at issue was
not a competition designed to fill specific posts, but a                  By order of 18 February 2000 the President of the Second
non-specialised competition concerning passage from one                   Chamber of the Court of First Instance of the European
category to another. They requested, consequently, that a full            Communities has ordered the removal from the register of
reserve list be drawn up including all the candidates who had             Case T-88/99: Vassilis Boucouvalas v European Parliament.
passed the tests, including themselves.
                                                                          (1) OJ C 160 of 5.6.1999.
In support of their claims before the Court of First Instance,
the applicants plead:
— infringement of Article 4 of the Staff Regulations, and of
    the general principle prohibiting appointment by order;
— infringement of Article 29(1) of the Staff Regulations;                        Removal from the register of Case T-207/99 R
— infringement of:                                                                                (2000/C 122/65)
    — Staff Notice No 16/91 concerning the general arrange-
         ments for applying the system of internal competitions,                            (Language of the case: Spanish)
         and in particular point ‘D’ thereof,
                                                                          By order of 14 February 2000 the President of the Court of
    — Staff Notices No 70/97 and 32/98 concerning Internal                First Instance of the European Communities has ordered the
                                                                          removal from the register of Case T-207/99 R: Asociación de
         Competition B/260.
                                                                          Fruticultores del Jalón Medio v Commission of the European
                                                                          Communities.


title: Case T-39/02: Action brought on 21 February 2002 by Banca Intesabci Spa against the Commission of the European Communities

text:
C 109/58                EN                     Official Journal of the European Communities                                         4.5.2002
The applicant claims that the Court should:                               Sanpaolo IMI spa, represented by Alberto Santa Maria, Claudio
                                                                          Biscaretti di Ruffia, Giuseppe Pizzonia and Marcello Valenti,
—     order the Commission to pay compensation for the                    lawyers.
      damage, to be quantified or in such sum as the Court
      shall think fit, caused to Alitalia by the first decision and
      the conditions imposed thereby and by the fact of that              The applicant claims that the Court should:
      measure having been reproduced by means of the second
      decision;                                                           —     annul the contested decision, issued on 11 December
                                                                                2001 by the Commission of the European Communities,
                                                                                on the grounds that it infringes essential procedural
—     order the Commission to pay interest on the amount
                                                                                requirements and/or is unfounded, contradictory and/or
      referred to above for the period up to the date of
                                                                                lacking in a statement of reasons in accordance with
      payment;
                                                                                Article 253 of the EC Treaty in conjunction with
                                                                                Articles 87 and 77 and with Council Regulation
—     order the Commission to pay the costs.                                    No 659/1999, as expounded in the application;
                                                                          —     alternatively, annul the decision in question wholly or in
                                                                                part pursuant to the second paragraph of Article 230 of
Pleas in law and main arguments                                                 the EC Treaty, inasmuch as it infringes or misapplies
                                                                                Article 87(1) or, in the further alternative, Article 87(3)(b)
                                                                                or (c) of the EC Treaty, as expounded in the application;
By the present action, Alitalia, the same applicant as in Cases
T-296/97 (1) and T-301/01 (2), is seeking an order requiring              —     in the still further alternative, in the inconceivable event
the defendant to pay compensation for the damage allegedly                      that the Court finds that the articles of Law No 461 of
caused by Commission Decision 97/789/EC of 15 July 1997                         23 December 1998 and of Legislative Decree No 153 of
concerning the recapitalisation of the applicant company and                    17 May 1999, to which the contested decision relates,
by the conditions imposed thereby, which it claims to have                      constitute a system of State aid which is incompatible
been reproduced, following the annulment of that first decision                 with the common market, rule that the contested decision
by the judgment of the Court of First Instance of 12 July                       of the Commission cannot have any retroactive effect;
2000 in the abovementioned Case T-296/97, by Decision
2001/723/EC of 18 July 2001.                                              —     subject to the reservation of all rights.
The pleas of illegality are the same as those advanced in the
abovementioned cases.                                                     Pleas in law and main arguments
(1) Judgment of the Court of First Instance of 12 December 2000 in        The pleas in law and main arguments are the same as those
    Case T-296/97 Alitalia v Commission [2000] ECR II-3871.               put forward in Case T-36/02 ABI v Commission.
(2) Case T-301/01 Alitalia v Commission (OJ C 44 of 16.2.2002,
    p. 24).
                                                                          Action brought on 21 February 2002 by Banca Intesabci
                                                                          Spa against the Commission of the European Communi-
Action brought on 21 February 2002 by Banca Sanpaolo                                                       ties
IMI spa against the Commission of the European Com-
                              munities                                                               (Case T-39/02)
                           (Case T-37/02)                                                          (2002/C 109/112)
                         (2002/C 109/111)                                                     (Language of the case: Italian)
                   (Language of the case: Italian)
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
                                                                          European Communities on 21 February 2002 by Banca
An action against the Commission of the European Communi-                 Intesabci Spa, represented by Alberto Santa Maria, Claudio
ties was brought before the Court of First Instance of the                Biscaretti di Ruffia, Giuseppe Pizzonia and Marcello Valenti,
European Communities on 21 February 2002 by Banca                         lawyers.
 ---pagebreak--- 4.5.2002               EN                       Official Journal of the European Communities                                     C 109/59
The applicant claims that the Court should:                                European Communities on 21 February 2002 by Banca di
                                                                           Roma spa, represented by Franco Gallo and Gabriele Escalar,
(1) annul the contested decision, issued on 11 December                    lawyers.
      2001 by the Commission of the European Communities,
      on the grounds that it infringes essential procedural
      requirements and/or is unfounded, contradictory and/or               The applicant claims that the Court should:
      lacking in a statement of reasons in accordance with
      Article 253 of the EC Treaty in conjunction with                     —     primarily, annul the decision of the Commission of the
      Articles 87 and 88 and with Council Regulation                             European Communities which is contested in these
      No 659/1999;                                                               proceedings;
                                                                           —     alternatively, annul the decision of the Commission of
(2) alternatively, annul the decision in question wholly or in
                                                                                the European Communities which is contested in these
      part pursuant to the second paragraph of Article 230 of
                                                                                proceedings in so far as it requires Italy to ‘adopt all
      the EC Treaty, inasmuch as it infringes or misapplies
                                                                                necessary measures to recover the aid granted from the
      Article 87(1) or, in the further alternative, Article 87(3)(b)
                                                                                recipients thereof’;
      or (c) of the EC Treaty;
                                                                           —     order the defendant to pay the costs of these proceedings
(3) in the still further alternative, in the inconceivable event                 and all other consequential expenses.
      that the Court finds that the articles of Law No 461 of
      23 December 1998 and of Legislative Decree No 153 of
      17 May 1999, to which the contested decision relates,
      constitute a system of State aid which is incompatible               Pleas in law and main arguments
      with the common market, exempt the private benefici-
      aries of such aid from having to reimburse the same and,
      in any event, rule that the contested decision of the                The pleas in law and main arguments are the same as those
      Commission cannot have any retroactive effect, thus                  put forward in Case T-36/02 ABI v Commission.
      annulling certain parts of the contested decision on the
      grounds that the Commission failed to exercise its
      investigatory power in a reasonable way and/or failed
      to give sufficient reasons, alternatively infringed the
      principles of the protection of legitimate expectations
      and/or proportionality and/or legal certainty within the
      meaning of Article 14 of Regulation No 659/1999.
                                                                           Action brought on 21 February 2002 by Mediocredito
                                                                           Centrale spa against the Commission of the European
                                                                                Communities
Pleas in law and main arguments
                                                                                (Case T-41/02)
The pleas in law and main arguments are the same as those                                         (2002/C 109/114)
put forward in Case T-36/02 ABI v Commission.
                                                                                (Language of the case: Italian)
                                                                           An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
                                                                           European Communities on 21 February 2002 by Mediocredito
Action brought on 21 February 2002 by Banca di Roma                        Centrale spa, represented by Franco Gallo and Gabriele Escalar,
spa against the Commission of the European Communities                     lawyers.
                          (Case T-40/02)                                   The applicant claims that the Court should:
                        (2002/C 109/113)                                   —     primarily, annul the decision of the Commission of the
                                                                                European Communities which is contested in these
                                                                                proceedings;
                    (Language of the case: Italian)
                                                                           —     alternatively, annul the decision of the Commission of
                                                                                the European Communities which is contested in these
                                                                                proceedings in so far as it requires Italy to ‘adopt all
An action against the Commission of the European Communi-                        necessary measures to recover the aid granted from the
ties was brought before the Court of First Instance of the                       recipients thereof’;


title: Case T-392/04: Action brought on 24 September 2004 by Salvatore Gagliardi against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (O.H.I.M.)

text:
               20.11.2004

               EN

               Official Journal of the European Union

               C 284/29

         Action brought on 24 September 2004 by Salvatore Gagliardi against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (O.H.I.M.)
   (Case T-392/04)
   (2004/C 284/57)
   Language in which the application was submitted: Italian
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 24 September 2004 by Salvatore Gagliardi, proprietor of the one-man business of the same name, represented by Alex Schmitt, Prof. Paolo Biavati and Sandro Corona, lawyers.
   The company Norma Lebensmittelfilaialbetrieb GmbH & Co. KG was also a party to the proceedings before the Board of Appeal.
   The applicant claims that the Court should:

               —

               annul the decision inter partes of the Fourth Appeal Board of the O.H.I.M. (proceedings R 0154/2002-4), and

               —

               pursuant to Article 87 of the Rules of Procedure, order the unsuccessful parties (the O.H.I.M. in so far as it incurs liability, for example, for being at fault on account of its having gone beyond the limits of the action brought before it) to pay the costs.

         Pleas in law and main arguments:

               Applicant for Community trade mark:

               Applicant

               Community trade mark sought:

               Figurative mark ‘MANU’ — Application for registration No 1.021.690, claim in respect of several products in Classes 18, 24 and 25

               Proprietor of mark or sign cited in the opposition proceedings:

               Norma Lebensmittelfilialbetrieb GmbH & Co. KG

               Mark or sign cited in opposition:

               German word mark ‘MANOU’, in respect of products in Class 25 (clothing, footwear, headgear)

               Decision of the Opposition Division:

               Opposition dismissed

               Decision of the Board of Appeal:

               Appeal granted and application for registration rejected

               Pleas in law:

               Misapplication of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark. The applicant also claims that the contested decision is flawed because it goes beyond the limits of the action brought before the Board in rejecting the application for registration of the trade mark, in respect of Classes 18 and 24 also, which unarguably were never the subject-matter of the opposition, in addition to other products in Class 25 other than items of clothing, despite the fact that only those last formed the basis of the opposition.


title: Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 12 August 1997 in the case of Glob-Sped AG against Hauptzollamt Lörrach (Case C-328/97)

text:
22 . 11 . 97           EN                   Official Journal of the European Communities                                       C 357/ 13
Appeal brought on 19 September 1997 by Christos                             regulation fixing a specific weighting for Berlin and
Apostolidis and others, 64 other officials and former                       another for Karlsruhe . By considering that the
officials of the Commission employed in the European                        Commission was not required to draw up new pay
Institute for Transuranic Elements, Karlsruhe, against the                  slips applying the weighting for the country of
judgment delivered on 10 July 1997 by the Third                             employment, calculated by reference to the cost of
Chamber of the Court of First Instance of the European                      living in the capital in the absence of a specific
Communities        in    Case    T-81 /96   between     Christos            weighting for the applicants' place of employment, the
Apostolidis and Others and the Commission of the                            Court infringed Article 176 of the Treaty.
European Communities, supported by the Council of the
                         European Union                                — Infringement of Article 63 et seq. of the Staff
                       ( Case C-327/97 P                                    Regulations : pursuant to the provisions of the Staff
                          ( 97/C 357/23 )                                   Regulations as made clear by the Court of Justice in
                                                                            its judgment in Case C-301 /90 (') in the absence of a
                                                                            specific weighting for Karlsruhe, officials' pay slips
An appeal against the judgment delivered on 10 July 1997                    must be calculated on the basis of the weighting
by the Third Chamber of the Court of First Instance of the                  applicable in the capital , in this case Berlin .
European Communities in Case T-81 /96 between Christos                      Accordingly, it appears that, since the Commission
Apostolidis and Others and the Commission of the                            decided, in its discretion, not to bring an action
European Communities was brought before the Court of                        against the Council, it was obliged to apply to
Justice of the European Communities on 19 September                         officials' remuneration the weighting for the country
1997 by Christos Apostolidis and others, 64 other officials                 of employment calculated by reference to the cost of
and former officials of the Commission employed in the                      living in its capital , Berlin .
European Institute of Transuranic Elements, Karlsruhe,
represented by Jean-Noel Louis, Thierry Demaseure and                  (') Case C-301 /90 Commission v. Council [ 1992 ] ECR , p . 1-221 .
Ariane Tornel, of the Brussels Bar, with an address for
service in Luxembourg at the offices of Fiduciare Myson
Sari, 30 Rue de Cessange .
The appellant claims that the Court should :
                                                                       Reference for a preliminary ruling by the Bundesfinanzhof
— order that the judgment of the Court of First Instance               by order of that court of 12 August 1997 in the case of
     (Third Chamber ) of 10 July 1997 in Case T-81 /96                          Glob-Sped AG against Hauptzollamt Lorrach
     Apostolidis and Others v. Commission dismissing the                                        ( Case C-328/97 )
     application made by the applicants is set aside,
                                                                                ( 97/C 357/24 )
and grant the form of order sought at first instance,
namely:                                                                Reference has been made to the Court of Justice of the
                                                                       European Communities by order of the Bundesfinanzhof
— order that the decision rejecting the applicants ' request           ( Federal Finance Court) of 12 August 1997, received at
     for the drawing-up of their pay slips for January 1992            the Court Registry on 22 September 1997, for a
     is annulled,                                                      preliminary ruling in the case of Glob-Sped AG against
                                                                       Hauptzollamt Lorrach ( Principal Customs Office Lorrach )
— the Commission is to pay to each applicant, as                       on the following questions :
     compensation for the non-material damage suffered,
     the sum of Bfrs 50 000,                                           1 . Are the comments of the Court of Justice in
                                                                            paragraph 15 of its judgment of 15 May 1997 in Case
— order the Commission to pay all the costs, including                      C-405/95 Bioforce v. Oberfinanzdirektion Miinchen to
     the costs incurred at first instance .                                 be interpreted as meaning that, in order for a
                                                                            preparation to be regarded as a product possessing the
Pleas in law and main arguments adduced in support:                         characteristic properties of a medicament for the
                                                                            purposes of heading 3004 of the combined
                                                                            nomenclature, it does not have to possess any
— Infringement of Article 215 ( 2 ) of the EC Treaty and
                                                                            objective qualities making it suitable for therapeutic or
     Article 44 ( 1 ) of the Rules of Procedure of the Court
     of First Instance — manifest error of assessment of the                prophylactic uses, but that just the overall presentation
                                                                            of the preparation ( information on its use, and its
     interests of the applicants in pursuing the action.
                                                                            packaging, dispensation and marketing), that is to say
                                                                            its subjective purpose, is sufficient for such a
— Infringement of Article 176 of the EC Treaty and of                       classification ?
     the case-law relied upon for its application, erroneous
     interpretation of the judgment of the Court of First
     Instance in Case T-64/92 : the Court of First Instance            2 . If Question 1 is answered in the negative :
     committed an error in law by considering that the
     judgment in Case T-64/92 imposed two inseparable                       Is   the   combined      nomenclature   for   1993     to    be
     obligations, namely that the Council should adopt a                    interpreted as meaning that vitamin pills such as
 ---pagebreak--- C 357/ 14               EN                     Official Journal of the European Communities                                   22 . 11 . 97
     'Taxofit Vitamin C + Ca effervescent pills' and                      the European Communities on 23 September 1997 by the
     'Taxofit Vitamin C chewable pills' are to be assigned                Portuguese Republic, represented by Joao Mota de
     to heading 3004 ('medicaments . . . consisting of                    Campos, Dr Luis Fernandes and Dr Maria Luisa Duarte,
     mixed or unmixed products for therapeutic or                         acting as Agents, with an adress for service in
      prophylactic uses, put up in . . . forms or packings for            Luxembourg at the Portuguese Embassy 33 Allee Scheffer.
      retail sale'), when they contain 1 000 mg and 500 mg
      of Vitamin C ( ascorbic acid ) per pill respectively, are
      imported in packings for retail sale, are to be used —
      according to the information on use which is                        The applicant claims that the Court should:
      contained in the leaflets enclosed with the packs and
      indicates a specific dose — inter alia 'to build up
      resistance: for colds and influenza infections, . . . and           — annul Commission Decision C(97) 2130 Final of 9 July
      allergic processes' and ' as a prophylactic at times of                 1997 on the measures taken by Portugal for the
      increased risk of infection' respectively, and are                      benefit of EPAC — Empresa Para a Agroalimenta^ao e
      authorized as medicinal products in the Federal                         Cereais SA,
      Republic of Germany ?
                                                                          — order the Commission to pay the costs.
Reference for a preliminary ruling from the Bundesverwal                 Pleas in law and main arguments adduced in support:
tungsgericht by order of that court of 15 July 1997 in the
                 case of Sezgin Ergat v. Stadt Ulm
                          ( Case C-329/97 )
                                                                          — Infringement of Article 190 of the EC Treaty
                             ( 97/C 357/25 )                                   ( contradictory and inadequate statement of reasons for
                                                                              the decision ).
Reference has been made to the Court of Justice of the
European Communities by an order of the Bundesverwal
tungsgericht ( Federal Administrative Court ) of 15 July                  — Infringement of Article 92 ( 1 ) of the EC Treaty: the
1997, which was received at the Court Registry on                             guarantee granted by the Portuguese Government for
22 September 1997, for a preliminary ruling in the case of                     financing by the banks of Esc 30 billion intended to
Sezgin Ergat v. Stadt Ulm on the following question:                          convert EPAC's short-term debts into medium-term
                                                                               liabilities does not constitute State aid to EPAC . The
                                                                              granting of a guarantee to what is no more than an
Does a Turkish national who has entered the country as a
                                                                               operation for the restructuring of the debts of a public
member of the family of a Turkish worker duly registered
                                                                               undertaking does not involve any transfer of resources
as belonging to the labour force, without requiring a                          from the State to that undertaking. The rate of interest
residence permit in accordance with the national law on                        on the loans negotiated between EPAC and the
foreigners in force at the date of entry, and has
                                                                               international consortium of banks reflects only the
subsequently been in possession of residence permits with                      desire on the part of the credit institutions involved to
interruptions, but who has applied for extension of his last                   make viable a financing operation whose objective was
residence permit 26 days after its expiry, satisfy the
                                                                               the restructuring of debts which had previously been
conditions in the first paragraph of Article 7 of Decision
                                                                               short-term, posing a threat to EPAC's solvency and
No 1/80 of the EEC-Turkey Association Council that he
                                                                               thus to the repayment of those banks ' credits, into
has been ' legally resident' there 'for at least three years'                  long-term liabilities.
( first indent) or 'for at least five years' ( second indent ), if
the     national    authorities     have  refused   to   extend  the
residence permit ?
                                                                               EPAC is an exclusively public capital undertaking. It is
                                                                               for the State, as the owner of the whole of the capital,
                                                                               therefore, to ensure it can continue to attain the
                                                                               general interest objectives it was created to achieve, in
                                                                               particular, the purpose of guaranteeing the purchase of
Action brought on 23 September 1997 by the Portuguese                          cereals from Portuguese farmers and the country's
       Republic against the Commission of the European                         supply of an essential basic good. The Portuguese
                               Communities                                      State, both in its capacity as sole shareholder and as
                                                                               administrator of the public interest, has both the right
                           ( Case C-330/97 )                                    and the exclusive obligation to support EPAC. By
                              ( 97/C 357/26 )                                   offering concrete support by granting the guarantee,
                                                                                the State did not place EPAC at an economic or
                                                                                financial advantage which it might not have obtained
 An action against the Commission of the European                               under the basic rule of the private investor operating
 Communities was brought before the Court of Justice of                         in a market economy.


title: Case T-439/09: Action brought on 23 October 2009 — Purvis v Parliament

text:
               16.1.2010

               EN

               Official Journal of the European Union

               C 11/32

         Action brought on 23 October 2009 — Purvis v Parliament
   (Case T-439/09)
   2010/C 11/61
   Language of the case: French

      Parties

      Applicant: John Robert Purvis (Saint Andrews, United Kingdom) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

      Defendant: European Parliament

      Form of order sought

               —

               Declare that the decisions of the Bureau of the Parliament of 9 March and 1 April 2009 are unlawful in so far as they amend the additional pension scheme and abolish the special methods of payment of the additional pension to Members or former Members of the Parliament who voluntarily joined that optional pension scheme;

               —

               Annul the Parliament’s decision of 7 August 2009, which refused the applicant 25 % of his pension in the form of a lump sum;

               —

               Order the Parliament to pay the costs.

      Pleas in law and main arguments

   The action has been brought against the Parliament’s decision of 7 August 2009, which was taken to implement the rules on the additional (voluntary) pension scheme in Annex VIII to the Rules governing the payment of expenses and allowances to Members of the European Parliament, as amended by the Parliament’s decision of 9 March 2009, and which dismissed the applicant’s application for payment, in part (25 %) in the form of a lump sum and in part in the form of an annuity, of his additional pension as from August 2009.
   In support of his action, the applicant relies as regards the substance of the case on four pleas in law alleging:

               —

               Infringement of the applicant’s acquired rights and of the principle of the protection of legitimate expectations;

               —

               Infringement of the general principles of equal treatment and of proportionality;

               —

               Breach of Article 29 of the Rules governing the payment of expenses and allowances to Members of the European Parliament which provides that the Quaestors and the Secretary-General are responsible for monitoring the interpretation and the strict application of those rules;

               —

               Breach of good faith in the implementation of contracts and nullity of purely enabling clauses.


title: JUDGMENT OF THE COURT (First Chamber) of 17 July 1997 in Case C-17/96 (reference for a preliminary ruling from the Bundesverwaltungsgericht): Badische Erfrischungs-Getränke GmbH & Co. KG v. Land Baden-Württemberg (Natural mineral water - Definition - Water favourable to health)

text:
27 . 9 . 97           EN                 Official Journal of the European Communities                                       C 295/7
Bench Division, for a preliminary ruling in the proceedings               imposes the sanction of loss of the entire payment
pending before that court between The Queen and                           related to a specific area on a farmer when the area of
Minister for Agriculture , Fisheries and Food, ex parte:                  land as actually determined is found to be more than
National Farmers' Union and Others, on the                                20% smaller than that declared in the aid application
interpretation and validity of Article 9 of Commission                    and there is no false intention or serious negligence.
Regulation ( EEC ) No 3887/92 of 23 December 1992
laying down detailed rules for applying the integrated              (>) OJ C 351 , 30 . 12 . 1995 .
administration and control system for certain Community
aid schemes ( OJ L 391 , 31 . 12 . 1992, p. 36 ), the Court
( Sixth Chamber ), composed of: G. F. Mancini
( Rapporteur ), President of the Chamber, J. L. Murray and
R J. G. Kapteyn, Judges; R Leger, Advocate-General; L.
Flewlett, Administrator, for the Registrar, gave a judgment
on 17 July 1997, the operative part of which is as follows:
                                                                                JUDGMENT OF THE COURT
                                                                                ( First Chamber)
1 . Article 9 (2) to (4) of Commission Regulation (EEC)
     No 3887/92 of 23 December 1992 laying down                                                of 17 July 1997
     detailed rules for applying the integrated                     in Case C-17/96 (reference for a preliminary ruling from
     administration and control system for certain                  the Bundesverwaltungsgericht ): Badische Erfrischungs
     Community aid schemes, prior to the entry into force           Getränke GmbH & Co. KG v. Land Baden-Württemberg (')
     of Commission Regulation (EC) No 1648/95 of 6 July
     199S, must be interpreted as precluding any payment            (Natural mineral water — Definition — Water favourable
     linked to the arable areas when the difference between                                         to health )
     the area of set-aside land declared and that determined
                                                                                ( 97/C 295/ 11 )
     on inspection by the competent authorities exceeds
     20% and there is no false intention or serious
     negligence. However, in the light of Articles 1 (2) and                         (Language of the case: German)
     2 (2) of Council Regulation (EC, Euratom) No 2988/
     95 of 18 December 1995 on the protection of the
     European Communities ' financial interests, under
     which less severe penalties introduced by subsequent              (Provisional translation; the definitive translation will be
     amendments to Community provisions must be                                published in the European Court Reports)
     applied retroactively, the amendments made to
     Article 9 (4) of Regulation (EEC) No 3887/92 by
     Regulation (EC) No 1648/95 apply to circumstances              In Case C-17/96 : reference to the Court under Article 177
     which occurred before its entry into force.                    of the EC Treaty from the Bundesverwaltungsgericht
     Consequently, the calculation of the maximum eligible          ( Federal Administrative Court ) for a preliminary ruling in
     area for the compensatory payments for arable crop             the proceedings pending before that court between
     producers must be made, under Article 9 (4) of                 Badische Erfrischungs-Getranke GmbH & Co . KG and
     Regulation (EEC) No 3887/92, as amended by                     Land Baden-Wurttemberg — on the interpretation of
     Regulation (EC) No 1648/95, on the basis of the area           Council Directive 80/777/EEC of 15 July 1980 on the
     of set-aside land actually determined and on a pro rata        approximation of the laws of the Member States relating
     basis for each crop concerned.                                 to the exploitation and marketing of natural mineral
                                                                    waters ( OJ L 229, 3 . 8 . 1980 , p. 1 ) — the Court ( First
                                                                    Chamber ), composed of: L. Sevon, President of the
2 . Article 9 (2) to (4) of Regulation    (EEC) No 3887/92          Chamber, P. Jann and M. Wathelet ( Rapporteur ), Judges;
     must be interpreted as precluding   the payment of any         M. B. Elmer, Advocate-General ; H. von Holstein,
     premium for bovine animals to         farmers when the         Assistant Registrar, for the Registrar, has given a judgment
     forage area as actually determined   is found to be more       on 17 July 1997, in which it has ruled:
     than 20% smaller than that declared in the area aid
     application and there is no false intention or serious
     negligence.                                                    Article 1 (1 ) of Council Directive 80/777/EEC of 15 July
                                                                     1980 on the approximation of the laws of the Member
                                                                    States relating to the exploitation and marketing of
 3 . Consideration of Article 9 (2) to (4) of Regulation            natural mineral waters, in conjunction with Annex I,
      (EEC) No 3887/92 has disclosed no factors of such a           Section I, paragraphs 1 and 2, thereto, must be interpreted
     kind as to affect its validity in the light of the             as precluding a Member State from making the
     principles of proportionality, legal certainty and non        recognition of water as natural mineral water dependent
     discrimination .                                                on its possessing properties favourable to health.
                                                                     (') OJ C 77, 16 . 3 . 1996 .
 4 . Consideration of Regulation (EEC) No 3887/92 has
     disclosed no factors of such a kind as to affect the
      validity of Article 9 (2) to (4) thereof in so far as it


title: Case C-410/13: Request for a preliminary ruling from the Vilniaus apygardos administracinis teismas lodged on 19 July 2013 — UAB ‘Baltlanta’ v Lietuvos valstybė, represented by the Ministry of Agriculture of the Republic of Lithuania

text:
               28.9.2013

               EN

               Official Journal of the European Union

               C 284/2

         Request for a preliminary ruling from the Vilniaus apygardos administracinis teismas lodged on 19 July 2013 — UAB ‘Baltlanta’ v Lietuvos valstybė, represented by the Ministry of Agriculture of the Republic of Lithuania
   (Case C-410/13)
   2013/C 284/02
   Language of the case: Lithuanian

      Referring court

   Vilniaus apygardos administracinis teismas

      Parties to the main proceedings

      Applicant: UAB ‘Baltlanta’

      Defendant: Lietuvos valstybė (State of Lithuania), represented by the Ministry of Agriculture of the Republic of Lithuania

      Questions referred

               1.

               Are the provisions of Article 38 of Regulation No 1260/1999, (1) laying down an obligation of the Member State to inform the European Commission of the progress of administrative and legal proceedings and to cooperate with the European Commission, to be interpreted as requiring the Member State to inform the European Commission about all legal disputes concerning the actions or inaction of the implementing, intermediate, managing or paying authorities connected with the assessment of an application, with selection, with adoption of the decision on the award of the assistance or with implementation of the project?

               2.

               Is Article 19 of Regulation No 2792/1999 (2) to be interpreted as requiring a Member State to have aid schemes established and to provide funds, in agreement with the European Commission, for those cases in which the courts are examining legal disputes concerning the actions or inaction of the implementing, intermediate, managing or paying authorities connected with the assessment of an application, with selection, with adoption of the decision on the award of the assistance or with implementation of the project?

               3.

               Are the provisions of sections 6 and 7 of Commission Decision COM(2006)3424 establishing Guidelines on closure of assistance (2000 to 2006) from the Structural Funds to be interpreted as requiring a Member State to inform the European Commission about all legal disputes concerning the actions or inaction of the implementing, intermediate, managing or paying authorities connected with the assessment of an application, with selection, with adoption of the decision on the award of the assistance or with implementation of the project, and to decide whether the operation should, wholly or partly, be withdrawn from the programme and/or replaced by another operation and so forth, or the operation should be retained in the programme, or to take other action to ensure the appropriate implementation of a decision on the award of assistance once the court proceedings have been concluded?

               4.

               Is the fact that, in the case examined in the national court, no specific measures have been laid down providing for the functions of the relevant State authorities when there are legal disputes concerning the actions or inaction of the implementing, intermediate, managing or payment authorities connected with the assessment of the application, with selection, with adoption of the decision on the award of the assistance or with implementation of the project, that is to say, there is no provision that the relevant State authorities have an obligation to inform the European Commission about court proceedings that are taking place and to take measures so that funds that have been provided are reserved for the disputed assistance until the question of the award of the assistance has been finally decided, compatible with the Member State’s obligation under Article 38 of Regulation No 1260/1999 to inform the European Commission about the progress of administrative and legal proceedings and to cooperate with the European Commission, with Article 19 of Regulation No 2792/1999, and with the requirements of sections 6 and 7 of Commission Decision COM(2006)3424 establishing Guidelines on the closure of assistance (2000 to 2006) from the Structural Funds?

      (1)  Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds (OJ 1999 L 161, p. 1).

      (2)  Council Regulation (EC) No 2792/1999 of 17 December 1999 laying down the detailed rules and arrangements regarding Community structural assistance in the fisheries sector (OJ 1999 L 337, p. 10).


title: Judgment of the Court (Sixth Chamber) of 15 June 2000 in Case C-365/98 (reference for a preliminary ruling from the Finanzgericht Düsseldorf): Brinkmann Tabakfabriken GmbH v Hauptzollamt Bielefeld (Directive 92/80/EEC — National tax consisting either in a specific duty for products which are not above a certain price, or in an ad valorem duty for products which are above that price)

text:
9.9.2000                  EN                      Official Journal of the European Communities                                             C 259/3
                   JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                           (Sixth Chamber)                                                               (Sixth Chamber)
                            of 15 June 2000
                                                                                of 15 June 2000
in Case C-365/98 (reference for a preliminary ruling from
the Finanzgericht Düsseldorf): Brinkmann Tabakfabriken                       in Case C-470/98: Commission of the European Communi-
                GmbH v Hauptzollamt Bielefeld (1)                                                 ties v Hellenic Republic (1)
(Directive 92/80/EEC — National tax consisting either in a                   (Failure of a Member State to fulfil its obligations —
specific duty for products which are not above a certain price,                    Incomplete transposition of Directive 90/675/EEC)
or in an ad valorem duty for products which are above that
                                  price)
                                                                                (2000/C 259/05)
                            (2000/C 259/04)
                                                                                (Language of the case: Greek)
                     (Language of the case: German)
                                                                             (Provisional translation; the definitive translation will be published
(Provisional translation; the definitive translation will be published                            in the European Court Reports)
                     in the European Court Reports)
In Case C-365/98: reference to the Court under Article 177 of                In Case C-470/98: Commission of the European Communities
the EC Treaty (now Article 234 EC) from the Finanzgericht                    (Agent: M. Condou Durande) v Hellenic Republic (Agents:
Düsseldorf (Finance Court, Düsseldorf) for a preliminary                     I.-K. Khalkias and N. Dafniou) — application for a declaration
ruling in the proceedings pending before that court between                  that by failing, except as regards fresh meat and poultrymeat,
Brinkmann Tabakfabriken GmbH and Hauptzollamt Bielefeld                      to adopt within the prescribed period the necessary measures
— on the interpretation of Council Directive 92/80/EEC                       to ensure that the costs of the veterinary and administrative
of 19 October 1992 on the approximation of taxes on                          cheeks in respect of products of agricultural origin from third
manufactured tobacco other than cigarettes (OJ 1992 L 316,                   countries, required by Articles 3(ii) and 4 of Council Directive
p. 10) — the Court (Sixth Chamber), composed of: J.C. Moitin-                90/675/EEC of 10 December 1990 laying down the principles
ho de Almeida, President of the Chamber, C. Gulmann,                         governing the organisation of veterinary checks on products
J.-P. Puissochet, V. Skouris (Rapporteur) and F. Macken, Judges;             entering the Community from third countries (OJ 1990 L 373
J. Mischo, Advocate General; H. von Holstein, Deputy Regis-                  p. 1), are met by the consignor, the consignee or their agent
trar, for the Registrar, has given a judgment on 15 June 2000,               without reimbursement by the State, the Hellenic Republic has
in which it has ruled:                                                       failed to fulfil its obligations under the EC Treaty and
                                                                             that directive — the Court (Sixth Chamber), composed of:
1.     Article 3(1) of Council Directive 92/80/EEC of 19 October             J.C. Moitinho de Almeida, President of the Chamber,
       1992 on the approximation of taxes on manufactured tobacco            R. Schintgen (Rapporteur), C. Gulmann, J.-R Puissochet and
       other than cigarettes must be interpreted as meaning that it          F. Macken, Judges; N. Fennelly, Advocate General; R. Grass,
       precludes the levying on cigars or cigarillos of a tax which is       Registrar, has given a judgment on 15 June 2000, in which it:
       calculated ad valorem without being able to be below a
       minimum amount.                                                       1.    Declares that by failing, except as regards fresh meat and
                                                                                poultrymeat, to adopt within the prescribed period the necessary
2.     Article 3(1) of Directive 92/80 does not confer on persons                  measures to ensure that the costs of the veterinary and
       chargeable to a tax on cigars or cigarillos, which is calculated            administrative checks in respect of products of agricultural
       ad valorem without being able to be below a minimum amount,                 origin from third countries, required by Articles 3(ii) and 4 of
       the right to rely on it before a national court in order to avoid           Council Directive 90/675/EEC of 10 December 1990 laying
       the application to them solely of the element of the tax formula            down the principles governing the organisation of veterinary
       relating to the levying of the minimum specific duty and,                   checks on products entering the Community from third
       consequently, to have solely an ad valorem tax levied.                      countries, are met by the consignor, the consignee or their agent
                                                                                without reimbursement by the State, the Hellenic Republic has
       However, the national court, where it applies provisions of                 failed to fulfil its obligations under that directive;
       national law adopted either before or after a directive, must
       interpret them, as far as possible, in the light of the wording       2.    Orders the Hellenic Republic to pay the costs.
       and the purpose of the Directive.
                                                                             (1) OJ C 48 of 20.2.1999.
(1) OJ C 378 of 5.12.1998.