title: Case C-36/00: Action brought on 10 February 2000 by the Kingdom of Spain against the Commission of the European Communities

text:
C 149/14               EN                     Official Journal of the European Communities                                     27.5.2000
— Infringement of Article 109(1) of the OCT Decision, so far                  7 June1990 on the freedom of access to information on
     as mixtures of cocoa and sugar (CN codes 1806 10 30                      the environment (1), and in particular Article 3(1) and (4)
     and 1806 10 90) are concerned: here too, the amounts in                  thereof, for failing to ensure that, within a period of two
     question are very small; if one extrapolates from the                    months after the request, the authorities of the Land
     Eurostat figures, one arrives at the figure of 15 278 tonnes             Schleswig-Holstein either provided the information
     for the whole of 1999. The suggestion that these mixtures                requested or refused the request.
     are ‘[imported] ... at prices below those at which Com-
     munity producers can sell comparable products’ is not               (2) order the Federal Republic of Germany to pay the costs.
     supported by any evidence. The fact that the Commission
     also misused its powers with regard to the mixtures of
     cocoa and sugar is in particular also evident from the
     nature of the measure laid down in Article 2 of the                 Pleas in law and main arguments
     regulation. While it may be a relatively innocuous measure
     (provided that it is not employed by customs authorities            The Commission submits that the practice referred to in the
     for the purpose of carrying out obstructive checks), a              application does not comply with the requirements of Article
     customs surveillance mechanism such as that referred to             3 of Directive 90/313/EEC, because the word ‘respond’ in the
     in Article 2 has as its purpose to collect information in           first sentence of Article 3(4) must be interpreted as including,
     order to determine whether the imports in question may              on the one hand, the provision of the information requested
     disrupt the market. The Commission’s reasoning is based             or permission to inspect the information, and, on the other
     on false premises.                                                  hand, the refusal of a request. The time element is of crucial
                                                                         significance for the efficiency of the whole system under the
— Infringement of Article 253 EC: the reasons set out in                 directive. If an authority were merely required to give an
     recitals (1) through (5) are inadequate, internally inconsist-      interim answer within the two-month period, stating that
     ent and incomprehensible.                                           access to the information can be granted at a later date, the
                                                                         system would not be effective. The Commission maintains that
— Infringement of Article 109(2) of the OCT Decision and                 only its interpretation of Article 3(4) of the directive accords
     the principle of proportionality: should it none the less be        with the aim of the directive and the effectiveness of the
     necessary to fix a threshold price for imports of OCT               opportunities for the persons concerned to obtain legal
     sugar, it would have been much more logical to proceed              protection, which the directive seeks.
     on the basis of a minimum selling price than on that of a
     minimum cif import price.
                                                                         (1) OJ L 158, 23.6.1990, p. 56.
(1) OJ 1999 L 294, p. 11.
                                                                         Action brought on 10 February 2000 by the Kingdom of
Action brought on 1 February 2000 by the Commission                      Spain against the Commission of the European Communi-
of the European Communities against the Federal Repub-                                                   ties
                          lic of Germany
                                                                                (Case C-36/00)
                          (Case C-29/00)
                                                                                (2000/C 149/24)
                         (2000/C 149/23)
                                                                         An action against the Commission of the European Communi-
An action against the Federal Republic of Germany was                    ties was brought before the Court of Justice of the European
brought before the Court of Justice of the European Communi-             Communities on 10 February 2000 by the Kingdom of Spain,
ties on 1 February 2000 by the Commission of the European                represented by Mr Santiago Ortiz Vaamonde, acting as Agent,
Communities, represented by Götz zur Hausen, Legal Adviser,              with an address for service in Luxembourg at the Spanish
with an address for service at the office of Carlos Gómez de la         Embassy, 4-6 Boulevard E. Servais.
Cruz, a Member of the Legal Service of the European Com-
mission, Wagner Centre, Kirchberg.
                                                                         The applicant claims that the Court should:
The Commission claims that the Court should:                             1. Declare void the decision of the Commission of 26 October
                                                                              1999 declaring certain aid granted to publicly owned
(1) declare the Federal Republic of Germany in breach of                      Spanish shipyards incompatible with the common market
     its obligations under Council Directive 90/313/EEC of                    and ordering its recovery,
 ---pagebreak--- 27.5.2000              EN                     Official Journal of the European Communities                                          C 149/15
2. Order the defendant institution to pay the costs.                     — (In the alternative) The PTA 58 billion paid is justified even
                                                                              if it is accepted that it cannot be paid alongside general tax
                                                                              credits. Breach of the principle that no one may renege on
                                                                              his own decisions (legitimate expectations) and manifest
                                                                              error of assessment: The PTA 58 billion granted was not
                                                                              calculated by reference to the 28 % of forecast losses of the
                                                                              shipyards from 1995 to 1998, but rather, an overall
                                                                              amount to be paid as aid was negotiated and granted.
Pleas in law and main arguments
— Improper procedure and breach of the principles of                     (1) of 2 June 1997 on aid to certain shipyards under restructuring —
    legitimate expectations, legal certainty and sound adminis-              OJ 1997 L 148, 6. 6. 1997, p. 1
    tration: if the incorporation (in late 1997) of shipyards into
    SEPI resulted in an immediate and automatic reduction in
    the aid granted to compensate for the loss of tax credits
    (from 1 August 1995 when the shipyards became part of
    a State organisation which was not considered a group
    covered by the tax consolidation system) then the Com-
    mission’s departments should not have acted as they did:
    they should either have advised the Kingdom of Spain of
    their interpretation of the situation or commenced the
    procedure for the review of certain aid declared compatible
    (‘existing aid’) pursuant to Article 88(1) EC and the case-
    law of the Court of Justice.
                                                                         Appeal brought on 11 February 2000 by Service pour le
                                                                         Groupement d’Acquisitions (SGA) against the judgment
                                                                         delivered on 13 December 2000 by the First Chamber of
— (In the alternative) Failure to state any reasons relating to          the Court of First Instance of the European Communities
    the effects of the aid declared incompatible.                        in Joined Cases T-189/95, T-39/96 and T-123/96, brought
                                                                         by Service pour le Groupement d’Acquisitions (SGA)
                                                                             against Commission of the European Communities
— Breach of Article 92(1) and (3) of the EC Treaty (now
    Article 87(1) and (3) EC), of Council Regulation                                               (Case C-39/00 P)
    No 1013/97 (1) and of the principle of legitimate expec-
    tations:
                                                                                (2000/C 149/25)
    1. The PTA 58 billion in aid granted cannot be considered            An appeal against the judgment delivered on 13 December
         in isolation, purely and simply as compensation for             2000 by the First Chamber of the Court of First Instance of
         the tax credits which the shipyards had to lose, but            the European Communities in Joined Cases T-189/95, T-39/96
         must be viewed as the outcome of overall negotiations.          and T-123/96, brought by Service pour le Groupement
         In failing to do so the Commission has breached                 d’Acquisitions (SGA) against Commission of the European
         Council Regulation 1013/97 and the principle of                 Communities was brought before the Court of Justice of the
         legitimate expectations arising from its Decision defini-       European Communities on 11 February 2000 by Service pour
         tively authorising aid of a specific amount.                    le Groupement d’Acquisitions (SGA), represented by SCP
                                                                         Fourgoux & Associates, of the Paris Bar, with an address for
                                                                         service in Luxembourg at the Chambers of Pierrot Schiltz, 4
                                                                         Rue Béatrix de Bourbon.
    2. The Commission’s interpretation of the limit on aid
         granted as a maximum breaches Article 92(3) of the
         EC Treaty and the principles of legal certainty and             The appellant claims that the Court should:
         legitimate expectations as it undermines the definitive
         nature of the Decision granting aid.
                                                                         — set aside the judgment of the Court of First Instance of
                                                                              13 December 1999 in Joined Cases T-189/95, T-39/96
                                                                              and T-123/96;
    3. The Commission includes in the aid granted amounts
         paid under a general scheme which do not constitute
         aid. This breaches Article 92(1) of the EC Treaty.              — order the Commission to pay all the costs.


title: Reference for a preliminary ruling from the Oberster Gerichtshof by order of that court of 30 April 1998 in the case of Österreichischer Gewerkschaftsbund, Gewerkschaft öffentlicher Dienst v Republic of Austria (Case C-195/98)

text:
C 234/16                EN                   Official Journal of the European Communities                                         25.7.98
     (mentioned in category 6 of Annex IA) contracts for               Does the amount of the charge payable under Article 8(1)
     financial services in connection with the issue, sale,             of the Agreement depend solely on the number of axles
     purchase or transfer of securities or other financial              fitted to the motor vehicle or articulated vehicle
     instruments'.                                                      combination in question, regardless of the distance
                                                                        between them and irrespective of whether an axle is used
(1) OJ L 209 of 24.7.1992, p. 1.                                        or raised during the journey, or are tandem axles/raisable
(2) Translator's note: it would appear, from the words quoted,          axles to be left out of account in calculating the charge?
    that the provision referred to is actually Article 1(b)(vii), not
    Article 2(a)(viii).                                                 (1) Concerning the interpretation of Article 8(1) of the Agreement
                                                                            of 9 February 1994 on the levying of charges for the use of
                                                                            certain roads by heavy commercial vehicles (Bundesgesetzblatt
                                                                            [Federal Gazette], Part II, p. 1768).
Reference for a preliminary ruling from the Oberlandes-
gericht Köln, by order of that court of 8 May 1998 in
proceedings concerning an administrative fine imposed on
                        Alois Pfennigmann                               Reference for a preliminary ruling from the Oberster
                         (Case C-193/98)                                Gerichtshof by order of that court of 30 April 1998 in the
                                                                        case of Österreichischer Gewerkschaftsbund, Gewerkschaft
                          (98/C 234/30)
                                                                                öffentlicher Dienst v Republic of Austria
Reference has been made to the Court of Justice of the                                           (Case C-195/98)
European Communities by order of the Oberlandesgericht                                            (98/C 234/32)
Köln (Higher Regional Court, Cologne) of 8 May 1998,
received at the Court Registry on 20 May 1998, for a                    Reference has been made to the Court of Justice of the
preliminary ruling in the proceedings concerning an                     European Communities by an order of the Oberster
administrative fine imposed on Alois Pfennigmann, on the                Gerichtshof (Austrian Supreme Court) of 30 April 1998,
following question (1):                                                 which was received at the Court Registry on 20 May
                                                                        1998, for a preliminary ruling in the case of
Is the answer to the question whether a motor vehicle or
                                                                        Österreichischer        Gewerkschaftsbund,          Gewerkschaft
articulated vehicle combination within the meaning of                   öffentlicher Dienst v Republic of Austria on the following
Article 2(1) of the Agreement in conjunction with the
                                                                        questions:
fourth indent of Article 2 of Council Directive 93/89/
EEC (2) is intended exclusively for the carriage of goods by            1. May a preliminary ruling of the Court of Justice of the
road conditional on the time at which, and the manner in                     European Communities under Article 177 of the EC
which, it is used, or does the answer to that question                       Treaty be sought in proceedings in which the Oberster
depend Ð irrespective of the purpose for which such a                        Gerichtshof has to decide, as a court of first and final
vehicle or combination is used in an individual case Ð on                    instance, on the basis of a factual situation
whether the general purpose for which the use of that                        independent of particular named persons, alleged by
vehicle or combination is intended is the carriage of goods                  one party and presumed to be true, on an application
by road?                                                                     by that party for a declaration that rights or legal
                                                                             relationships in the field of employment law, which
(1) Concerning the interpretation of Article 2(1) of the Agreement           according to the submissions of that party, which are
    of 9 February 1994 on the levying of charges for the use of
                                                                             presumed to be true, are of importance for at least
    certain roads by heavy commercial vehicles (Bundesgesetzblatt
    [Federal Gazette], Part II, p. 1768).                                    three employers or employees, do or do not exist?
(2) OJ L 279 of 12.11.1993, p. 32.
                                                                             If Question 1 is answered in the affirmative,
                                                                        2. Does Article 48 of the EC Treaty or any other
                                                                             provision of Community law, in particular Article 7 of
                                                                             Council Regulation No 1612/68 (1), preclude the
Reference for a preliminary ruling from the Oberlandes-                      material date of advancement for classification in the
gericht Köln, by order of that court of 8 May 1998 in                        relevant pay scheme of contractual teachers and
proceedings concerning an administrative fine imposed on                     contractual teaching assistants employed by the
                         Eckard Pörschke                                     respondent from being determined differently, in that
                                                                             the periods completed by such persons in employment,
                         (Case C-194/98)
                                                                             to at least one half of the extent prescribed for full-
                          (98/C 234/31)                                      time employees, in the service of an Austrian local
                                                                             authority or in a teaching post at an Austrian public
Reference has been made to the Court of Justice of the                       school, university, college or academy of the visual
European Communities by order of the Oberlandesgericht                       arts or at an Austrian publicly recognised private
Köln (Higher Regional Court, Cologne) of 8 May 1998,                         school are treated as preceding in full the date on
received at the Court Registry on 20 May 1998, for a                         which those persons were engaged, whereas periods
preliminary ruling in the proceedings concerning an                          completed at comparable institutions of Member
administrative fine imposed on Eckard Pörschke, on the                       States are taken into account only with the consent of
following question (1):                                                      the Federal Minister for Financial Affairs, in full if
 ---pagebreak--- 25.7.98                EN                     Official Journal of the European Communities                                       C 234/17
    they are of special importance for the successful                          conditions such as those imposed in Great Britain for
    deployment of the contractual employee, otherwise to                       Reduced Earnings Allowance from 1988Ð89 onwards
    the extent of one half if the service started not later                    are necessary to ensure coherence between schemes or
    than 30 April 1995, and if it started later to the extent                  otherwise fall within the permitted exclusion in
    of one half but only in so far as they do not exceed a                     Article 7?
    total of three years?
                                                                         3.    If those unequal age conditions are not within the
    If Questions 1 and 2 are answered in the affirmative,
                                                                               permittd exclusion in Article 7, then does the doctrine
                                                                               of direct effect require the national court (in the
3. Are periods completed in institutions in Member                             absence of national legislation to comply with the
    States comparable to the said institutions to be taken                     Directive) to rectify the inequality by awarding an
    into account without temporal limitation?                                  additional payment to each individual concerned in
                                                                               any week when the payment prescribed under the
                                                                               occupational accident and disease scheme for him or
(1) OJ, English Special Edition 1968 (II), p. 475.                             her is lower than for a person of the other sex but in
                                                                               otherwise similar circumstances (the comparator'),
                                                                               without regard to:
                                                                               (a) any converse advantage in other weeks when, for
                                                                                the same individual, a higher payment is
Reference for a preliminary ruling by the Social Security                          prescribed than for the comparator; and/or
Commissioner, by order of 8 May 1998, in the cases of
Regina Virginia Hepple, Anna Stec, Patrick Vincent Lunn,
Oliver Kimber and Sybil Spencer against the Adjudication                       (b) the existence or exercise of sex-differentiated
                              Officer                                              options under the pension scheme to choose the
                                                                                pension starting age, the effect of which in
                        (Case C-196/98)
                                                                                conjunction with the unequal conditions under the
                          (98/C 234/33)                                            occupational accident and disease scheme may be
                                                                                to cause altered (and unequal) weekly payments
                                                                                under that scheme: in some weeks to the
Reference has been made to the Court of Justice of the                             advantage of the individual, in others to the
European Communities by an order of the Social Security                            comparator?
Commissioner of 8 May 1998, which was recevied at the
Court Registry on 22 May 1998, for a preliminary ruling
in the cases of Regina Virginia Hepple, Anna Stec, Patrick                     Or should some account be taken of such matters,
Vincent Lunn, Oliver Kimber and Sybil Spencer against                          and if so what are the principles to be applied in
the Adjudication Officer, on the following questions:                          relation to them in giving direct effect to Article 4?
1.   Does Article 7 of Council Directive 79/7/EEC (1)                    (1) Council Directive 79/7/EEC of 19 December 1978 on the
                                                                             progressive implementation of the principle of equal treatment
     permit a Member State to impose unequal age
                                                                             for men and women in matters of social security (OJ L 6 of
     conditions linked to the different pension ages for                     10.1.1979, p. 24).
     men and women under its statutory old-age pension
     scheme, on entitlement to a benefit having the
     characteristics of Reduced Earnings Allowance under
     a statutory occupational accident and disease scheme,
     so as to produce different weekly cash payments
     under that scheme for men and women in otherwise
     similar circumstances, in particular where the
     inequality:                                                         Action brought on 20 May 1998 by the Commission of
                                                                          the European Communities against the Hellenic Republic
     (a) is not necessary for any financial reason connected                                    (Case C-197/98)
         with either scheme; and
                                                                                (98/C 234/34)
     (b) never having been imposed before, is imposed for
         the first time many years after the inception of the
         two schemes and also after 23 December 1984,                    An action against the Hellenic Republic was brought
         the latest date for the Directive to be given full              before the Court of Justice of the European Communities
         effect under Article 8?                                         on 20 May 1998 by the Commission of the European
                                                                         Communities, represented by M. Patakia and B. Mongin,
                                                                         both of its Legal Service, with an address for service in
2.   If the answer to Question I is Yes, what are the                    Luxembourg at the office of Carlos Gómez de la Cruz, of
     considerations that determine whether unequal age                   its Legal Service, Wagner Centre, Kirchberg.


title: Case C-50/01: Reference for a preliminary ruling by the Tribunale di Siena, by order of that court of 26 January 2001 in the case of Milena Castellani v Istituto Nazionale della Previdenza Sociale (INPS)

text:
C 95/6                  EN                    Official Journal of the European Communities                                      24.3.2001
The appellant claims that the Court should:                                    or administrative provisions necessary to comply with
                                                                               Council Directive 95/63/EC of 5th December 1995 (1)
—     Set aside the order under appeal and refer the case to the               amending Directive 89/655/EEC (2) concerning the mini-
      Court having jurisdiction in the matter;                                 mum safety and health requirements for the use of work
                                                                               equipment by workers at work and/or failing to inform
—     Order the Commission to pay the costs of the proceedings                 the Commission thereof and
      before both Community Courts.
                                                                         —     condemn Ireland to bear the costs of the procedure.
Pleas in law and main arguments
                                                                         Pleas in law and main arguments
(1)    The legal definition of the action at first instance
                                                                         Article 249 EC, under which a directive shall be binding as to
       Having regard to the action at first instance, and bearing        the result to be achieved, upon each Member State, carries by
       in mind the fact that the formal issue of the legal               implication an obligation on the Member States to observe the
       definition thereof cannot be regarded as precluding the           period for compliance laid down in the directive. That period
       admissibility of an action, it appears permissible to argue       expired on 5 December 1998 without Ireland having enacted
       that the grounds set out on that point in the order under         the provisions necessary to comply with the directive referred
       appeal ought to be censured in their entirety.                    to in the conclusions of the Commission.
(2)    The jurisdiction of the Court of First Instance                   (1) OJ L 335, 30.12.1995, p. 28.
                                                                         (2) OJ L 393, 30.12.1989, p. 13.
       It is clear that, since this case involves a dispute
       between a Community institution and the member of a
       consultative committee established by that institution,
       the Court of First Instance has jurisdiction to deal with
       the dispute.
       It is further evident that, pursuant to Article 91 of             Reference for a preliminary ruling by the Tribunale di
       the Staff Regulations applicable to officials and other           Siena, by order of that court of 26 January 2001 in
       servants of the European Communities, the Court of                the case of Milena Castellani v Istituto Nazionale della
       Justice has jurisdiction in any dispute between the                                  Previdenza Sociale (INPS)
       Community and ‘any person to whom these Staff
       Regulations apply’. Since the Court of First Instance
       ruled that it lacked jurisdiction in favour of the Court of                                 (Case C-50/01)
       Justice, the Court of First Instance ought, of its own
       motion, to have ensured that the application was                                            (2001/C 95/11)
       forwarded to the Court having jurisdiction in the matter.
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by an order of the Tribunale di Siena
                                                                         (District Court, Siena) of 26 January 2001, which was received
                                                                         at the Court Registry on 5 February 2001, for a preliminary
                                                                         ruling in the case of Milena Castellani v Istituto Nazionale della
Action brought on 5 February 2001 by the Commission                      Previdenza Sociale (INPS), on the following questions:
        of the European Communities against Ireland
                                                                         Is the rule precluding aggregation of the accounting value of
                          (Case C-48/01)                                 the special supplementary pay with the payments made to a
                                                                         worker in the reference period (Article 2(4) of Legislative
                          (2001/C 95/10)                                 Decree No 80/1992) compatible — inter alia in the light of
                                                                         past ruling of the Court of Justice concerning that decree —
An action against Ireland was brought before the Court of                with EEC Directive 987/80 (1), and in particular:
Justice of the European Communities on 5 February 2001 by
the Commission of the European Communities, represented                  (1) Can that non-aggregability be regarded as conforming
by Ms Nicola Yerrell, Member of its legal Service, acting as                   with the purpose of the directive which appears
agent, with an address for service at the office of Mr Carlos                  (Article 3(1)) to be to ensure the payment of outstanding
Gómez de la Cruz, also a member of its Legal Service, Centre                  claims in respect of wages arising within a specified time
Wagner, Kirchberg, Luxembourg.                                                 span (Article 3(2)) and in respect of a certain period
                                                                               (Article 4(1) and (2))? or
The Applicant requests that the Court should:
                                                                         (2) Does that non-aggregability reflect a rule concerning
—     find that Ireland has failed to fulfil its obligations under             assistance, not conforming with the social criterion on
      the EC Treaty by failing to adopt the laws, regulations                  which Directive 987/80 is based?
 ---pagebreak--- 24.3.2001               EN                      Official Journal of the European Communities                                          C 95/7
(3) Does that non-aggregability render the directive inoperat-             Reference for a preliminary ruling from the Tribunal
      ive or result in its partial disapplication?                         des Affaires de Sécurité Sociale, Nanterre, France, by
                                                                           judgment of that court of 23 November 2000 in the case
(4) Can that non-aggregability be allowed in the context of                of Patricia Inizan v Caisse Primaire d’Assurance Maladie
      the power of the Member States to impose a ceiling on                                       des Hauts de Seine
      the guarantee of payment of workers’ claims (Article 3(4)),
      having regard to the fact that the Italian legislature has                                     (Case C-56/01)
      already imposed a ceiling by means of Article 2(2) of the
      legislative decree at issue?                                                                   (2001/C 95/12)
(5) Consequently, must the reference to the ‘maximum                       Reference has been made to the Court of Justice of the
      amount of the special supplementary pay’ in the said                 European Communities by a judgement of the Tribunal des
      Article 2(2) be regarded as being made merely for formal             Affaires de Sécurité Sociale (Social Security Court), Nanterre,
      or accounting purposes or is it an incorporative reference           of 23 November 2000, which was received at the Court
      (with the consequent inclusion in Legislative Decree                 Registry on 9 February 2001, for a preliminary ruling in the
      No 80/1992 of the provisions giving effect to the                    case of Patricia Inizan v Caisse Primaire d’Assurance Maladie
      special wage supplement, including the so-called non-                des Hauts de Seine, on the following question;
      aggregability rule)?
                                                                           ‘Is Article 22 of Regulation (EEC) No 1408/71 (1) compatible
(6) Finally, may non-aggregability be regarded as allowed in               with Articles 59 [now, after amendment, Article 49 EC] and
      the context of the power of the Member States to adopt               60 [now Article 50 EC] of the Treaty of Rome? Consequently,
      the measures necessary to avoid abuses (Article 10(a))?              is the Caisse Primaire d’Assurance Maladie des Hauts de Seine
                                                                           entitled to refuse Ms Inizan reimbursement of the costs of
                                                                           psychosomatic pain treatment in Essen, Germany, following
(1) Council Directive 80/987 of 20 October 1980 on the approxi-            an unfavourable opinion from the National Medical Officer?’
    mation of the laws of the Member States relating to the protection
    of employees in the event of the insolvency of their employer —
    OJ 1980 L 283, p. 23.                                                  (1) 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 members of their families moving
                                                                               within the Community (amended and updated version, OJ 1997
                                                                               L 28, p. 4).


title: Case C-507/14: Request for a preliminary ruling from the Supremo Tribunal de Justiça (Portugal) lodged on 13 November 2014  — P v M

text:
               23.2.2015

               EN

               Official Journal of the European Union

               C 65/18

         Request for a preliminary ruling from the Supremo Tribunal de Justiça (Portugal) lodged on 13 November 2014 — P v M
   (Case C-507/14)
   (2015/C 065/27)
   Language of the case: Portuguese

      Referring court

   Supremo Tribunal de Justiça

      Parties to the main proceedings

      Applicant: P

      Defendant: M

      Question referred

   ‘Where a case concerning parental responsibility is brought in one Member State and another case, in which the same cause of action is at issue, has been brought at an earlier point in time in a different Member State and which has since been stayed at the request of the applicant in that case, without having been served on the relevant defendant and without the latter having been informed of its existence or having participated in that case in any way, and which was still stayed at the time the defendant in the earlier case brought the subsequent proceedings, can it be deemed, in the light of Article 16(1)(a) of Council Regulation (EC) No 2201/2003 (1) of 27 November 2003 and for the purposes of Article 19(2) of that regulation, that the court before which the earlier proceedings were stayed was the first court to be seised?’

      (1)  Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 — (OJ 2003 L 338, p. 1).


title: Case T -121/02: Order of the Court of First Instance of  31 May 2006  — Compagnia di San Paolo v Commission

text:
               29.7.2006

               EN

               Official Journal of the European Union

               C 178/40

         Order of the Court of First Instance of 31 May 2006 — Compagnia di San Paolo v Commission
   (Case T -121/02) (1)

   (2006/C 178/72)

      Language of the case: Italian

   The President of the Fourth Chamber (Extended Composition) has ordered that the case be removed from the register.

      (1)  OJ C 144, 15.6.2000.


C 358/12               EN                Official Journal of the European Communities                                 21.11.98
Reference for a preliminary ruling from the Conseil de              The time-limit here passed on 23 November 1995 without
Prud'hommes (Industrial Tribunal), Bobigny, by judgment             the Italian Republic having adopted the provisions
of 2 July 1998 in the case of Bernard Bauduin and                   necessary to comply with the directive referred to in the
                Laurent Blondeau v. Renault SA                      form of order sought by the Commission.
                        (Case C-360/98)
                                                                    (1) OJ L 307, 13.12.1993, p. 1.
                         (98/C 358/21)
Reference has been made to the Court of Justice of the
European Communities by a judgment of the Conseil de
Prud'hommes, Bobigny, of 2 July 1998, which was
received at the Court Registry on 8 October 1998, for a                   Removal from the register of Case C-168/97 (1)
preliminary ruling in the case of Bernard Bauduin and
                                                                                (98/C 358/23)
Laurent Blondeau v. Renault SA on the following
question:
                                                                    By order of 16 September 1998 the President of the Court
Is Article 18 of the Agreement of 5 July 1991 compatible            of Justice of the European Communities has ordered the
with the provisions of Community law, and Article 119 of            removal from the register of Case C-168/97 (reference for
the Treaty of Rome in particular?                                   a preliminary ruling from the High Court of Justice,
                                                                    Queen's Bench Division): The Queen v. Secretary of State
                                                                    for Defence ex parte: Terence Perkins.
                                                                    (1) OJ C 199, 28.6.1997.
Action brought on 9 October 1998 by the Commission of
  the European Communities against the Italian Republic
                        (Case C-362/98)
                         (98/C 358/22)
                                                                            Removal from the register of Case C-5/98 (1)
An action against the Italian Republic was brought before                                    (98/C 358/24)
the Court of Justice of the European Communities on
9 October 1998 by the Commission of the European                    By order of 25 September 1998 the President of the Court
Communities, represented by Pieter Jan Kuijper, Legal               of Justice of the European Communities has ordered the
Adviser, acting as Agent, with an address for service in            removal from the register of Case C-5/98 (reference for a
Luxembourg at the office of Carlos Gómez de la Cruz,                preliminary ruling from the Tribunal de Grande Instance,
Wagner Centre, Kirchberg.                                           AngouleÃme): SA Otor Godard v. Administration des
                                                                    Impôts.
The applicant claims that the Court should:
Ð declare that, by failing to bring into force the laws,            (1) OJ C 72, 7.3.1998.
    regulations and administrative provisions necessary
    to comply with Council Directive 93/103/EC (1) of
    23 November 1993 concerning the minimum safety
    and health requirements for work on board fishing
    vessels, and/or by failing to notify the Commission of
    those provisions, the Italian Republic has failed to                   Removal from the register of Case C-82/96 (1)
    fulfil its obligations under the EC Treaty;                                              (98/C 358/25)
Ð order the Italian Republic to pay the costs of the
                                                                    By order of 7 October 1998 the President of the Court of
    proceedings.
                                                                    Justice of the European Communities has ordered the
Pleas in law and main arguments adduced in support:                 removal from the register of Case C-82/96 (reference for a
                                                                    preliminary ruling from the High Court of Justice,
Article 189 of the EC Treaty, under which a directive is            Queen's Bench Division): The Queen v. The Secretary of
binding, as to the result to be achieved, upon each                 State for Trade and Industry ex parte: The Consumers'
Member State to which it is addressed, involves an                  Association and Which? Ltd.
obligation on the part of Member States to comply with
the time-limits for transposition laid down in directives.          (1) OJ C 145, 18.5.1996.


title: Judgment of the Court of 18 November 1999 in Case C-200/98 (reference for a preliminary ruling from the Regeringsrätten): X AB and Y AB v Riksskatteverket (Freedom of establishment — Payment made by a Swedish company to its subsidiary — Exemption from corporation tax)

text:
19.2.2000               EN                      Official Journal of the European Communities                                               C 47/7
within the meaning of Council Regulation (EEC) No 1408/71 of                                  JUDGMENT OF THE COURT
14 June 1971 on the application of social security schemes to
employed persons, to self-employed persons and to members of their                                 of 18 November 1999
families moving within the Community, as amended by Council
Regulation (EEC) No 1248/92 of 30 April 1992.                              in Case C-200/98 (reference for a preliminary ruling from
                                                                           the Regeringsrätten): X AB and Y AB v Riksskatteverket (1)
(1) OJ C 209 of 4.7.1998.                                                  (Freedom of establishment — Payment made by a Swedish
                                                                           company to its subsidiary — Exemption from corporation
                                                                                tax)
                                                                                (2000/C 47/12)
                                                                                (Language of the case: Swedish)
                 JUDGMENT OF THE COURT                                     (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                          (First Chamber)
                                                                           In Case C-200/98: reference to the Court under Article 177 of
                      of 18 November 1999                                  the EC Treaty (now Article 234 EC) from the Regeringsrätten
                                                                           (Supreme Administrative Court) (Sweden) for a preliminary
                                                                           ruling in the proceedings pending before that court between X
in Case C-191/98 P: Georges Tzoanos v Commission of                        AB, Y AB and Riksskatteverket — on the interpretation of
                 the European Communities (1)                              Article 52 of the EC Treaty (now, after amendment, Article 43
                                                                           EC), Article 53 of the EC Treaty (repealed by the Treaty of
(Appeal — Dismissal of application for annulment of a                      Amsterdam), Article 54 of the EC Treaty (now, after amend-
decision ordering removal from post — Concurrent disciplin-                ment, Article 44 EC), Article 55 of the EC Treaty (now
ary and criminal proceedings (Fifth paragraph of Article 88                Article 45 EC), Articles 56 and 57 of the EC Treaty (now, after
                     of the Staff Regulations))                            amendment, Articles 46 EC and 47 EC) and Articles 58, 73b
                                                                           and 73d of the EC Treaty (now Articles 48 EC, 56 EC and 58
                           (2000/C 47/11)                                  EC) — the Court, composed of: G.C. Rodrı́guez Iglesias,
                                                                           President, J.C. Moitinho de Almeida, D.A.O. Edward (Rappor-
                                                                           teur), L. Sevón, R. Schintgen (Presidents of Chambers), C. Gul-
                    (Language of the case: French)                         mann, P. Jann, H. Ragnemalm and M. Wathelet, Judges; A. Sag-
                                                                           gio, Advocate General; H. von Holstein, Deputy Registrar, for
                                                                           the Registrar, has given a judgment on 18 November 1999, in
(Provisional translation; the definitive translation will be published     which it has ruled:
                   in the European Court Reports)                          Where a Member State grants certain tax relief in respect of
                                                                           intra-group transfers made between two public limited companies
In Case C-191/98 P: Georges Tzoanos, a former official of the              established in that Member State and the second of those companies
Commission of the European Communities, residing in Athens                 is wholly owned by the first, either directly or together with
(Greece), represented by E. Boigelot, of the Brussels Bar, with
                                                                           — one or more subsidiaries which are themselves established in that
an address for service in Luxembourg at the Chambers of L.
                                                                                Member State and which it owns entirely, or
Schiltz, 2 Rue du Fort Rheinsheim — appeal against the
judgment of the Court of First Instance (Fourth Chamber) of                — one or more subsidiaries which it owns entirely and which have
19 March 1998 in Case T-74/96 Tzoanos v Commission                              their seats in another Member State with which the first Member
[1998] ECR-SC I-A-129 and II-343, seeking to have that                          State has concluded an agreement for the prevention of double
judgment set aside, the other party to the proceedings being                    taxation which contains a non-discrimination clause,
Commission of the European Communities, (Agent: G. Valses-                 Article 52 of the EC Treaty (now, after amendment, Article 43 EC),
ia, with D. Waelbroeck and O. Speltdoorn) — the Court                      Article 53 of the EC Treaty (repealed by the Treaty of Amsterdam),
(First Chamber), composed of: D.A.O. Edward (Rapporteur),                  Article 54 of the EC Treaty (now, after amendment, Article 44 EC),
President of the Fifth Chamber, acting as President of the First           Article 55 of the EC Treaty (now Article 45 EC), Articles 56 and
Chamber, P. Jann and M. Wathelet, Judges; S. Alber, Advocate               57 of the EC Treaty (now, after amendment, Articles 46 EC and 47
General; R. Grass, Registrar, has given a judgment on 18 Nov-              EC) and Article 58 of the EC Treaty (now Article 48 EC) preclude
ember 1999, in which it:                                                   that tax relief from being refused in respect of transfers made between
                                                                           two public limited companies established in that Member State,
1. Dismisses the appeal;                                                   where the second of those companies is wholly owned by the first
                                                                           together with several subsidiaries which it owns entirely and which
2. Orders Mr Tzoanos to pay the costs of this appeal.                      have their seat in various other Member States with which the first
                                                                           Member State has concluded agreements for the prevention of double
(1) OJ C 258 of 15.8.1998.                                                 taxation which contain a non-discrimination clause.
                                                                           (1) OJ C 258 of 15.8.1998.


title: Case T-414/04: Action brought on 11 October 2004 by the Federal Republic of Germany against the Commission of the European Communities

text:
               18.12.2004

               EN

               Official Journal of the European Union

               C 314/24

         Action brought on 11 October 2004 by the Federal Republic of Germany against the Commission of the European Communities
   (Case T-414/04)
   (2004/C 314/57)
   Language of the case: German
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 11 October 2004 by the Federal Republic of Germany, represented by C.-D. Quassowski and C. von Donat, lawyer.
   The applicant claims that the Court should:

               —

               annul the Commission decision notified by letter of the Directorate-General for Regional Policy of 9 August 2004 in so far as the Community assistance from the European Regional Development Fund for the Operational Programme RESIDER II North Rhine-Westphalia 1995-1999 (ERDF No 94.02.10.036 / ARINCO No 94.DE.16.051) was reduced to EUR 72 794 851.67 and payment to the German authorities of the balance of EUR 2 268 988.33 was refused;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments:
   By the contested decision, the Commission reduced the Community assistance from the ERDF Structural Funds for the Operational Programme RESIDER II North Rhine-Westphalia 1995-1999 (ERDF No 94.02.10.036 / ARINCO No 94.DE.16.051) to EUR 72 794 851.67 and refused to pay the German authorities the balance of EUR 2 268 988.33. The reason for the reduction is that, compared with the indicative financial plan, recourse to the programme was lower with respect to certain measures and higher with respect to others. A balance between the more and less heavily used measures was not achieved within the individual priorities of the programme but rather at the level of the programme as a whole.
   In support of its action, the applicant first of all observes that, under Article 24 of Regulation No 4253/88, (1) Community assistance may be reduced only if there has been a significant change affecting the nature or conditions of the operation or measure. In the applicant's view, the adjustments made do not constitute such a significant change.
   If those adjustments are to be regarded as a significant change, the applicant submits that the Commission gave prior approval in its ‘Guidelines on the closure of operational programmes (1994-1999) of the Structural Funds’ (SEC(1999) 1316).
   The applicant also complains that the Commission abused its discretion by failing to even exercise it and that there are errors in the reasoning for the contested decision.

      (1)  Council Regulation (EEC) No 4253/88 of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments (OJ 1988 L 374, p. 1).


title: Case C-387/01: Reference for a preliminary ruling by the Verwaltungsgerichtshof, by order of that court of 20 September 2001, in the case of (1) Dr Harald Weigel and (2) Ingrid Weigel against the Finanzlandesdirektion für Vorarlberg

text:
22.12.2001            EN                   Official Journal of the European Communities                                         C 369/7
Reference for a preliminary ruling by the Verwaltungsge-              Action brought on 8 October 2001 by the French Repub-
richtshof, by order of that court of 20 September 2001,               lic against the Commission of the European Communities
in the case of (1) Dr Harald Weigel and (2) Ingrid Weigel
     against the Finanzlandesdirektion für Vorarlberg
                                                                                (Case C-394/01)
                                                                                (2001/C 369/12)
                         (Case C-387/01)
                         (2001/C 369/11)                              An action against the Commission of the European Communi-
                                                                      ties was brought before the Court of Justice of the European
                                                                      Communities on 8 October 2001 by the French Republic
                                                                      represented by G. de Bergues and F. Million, acting as Agents,
                                                                      with an address for service in Luxembourg.
Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgerichts-             The French Republic claims that the Court should:
hof (Federal Administrative Court) of 20 September 2001,
received at the Court Registry on 8 October 2001, for a
preliminary ruling in the case of (1) Dr Harald Weigel and (2)        —     annul the Commission’s decision of 25 July 2001, taken
Ingrid Weigel against the Finanzlandesdirektion für Vorarlberg,             on the basis of Articles 87 and 88 EC relating to State aid
on the following questions:                                                 granted by France in the form of development assistance
                                                                            for the liner ‘Le Levant’ built by Alstom Leroux Naval and
                                                                            intended for operation in Saint-Pierre-et-Miquelon; and
1.   Is Article 39 EC (freedom of movement for workers) or
     Article 12 EC (discrimination on the ground of national-         —     order the Commission to pay the costs.
     ity) to be construed as meaning that those provisions are
     infringed where Normverbrauchsabgabe (basic duty plus
     surcharge) is charged on a vehicle brought into the
     Republic of Austria from another part of the Community
     in connection with a transfer of residence necessitated by       Pleas in law and main arguments
     a change of job?
                                                                      Errors of fact and of law and manifest errors of assessment
2.   Do Article 90 EC (prohibition of higher taxation on              relating to the ‘development’ component of the aid at issue;
     goods from other Member States) or Article 23 EC
     (Customs Union) and Article 25 EC (prohibition of
     customs duties or charges having equivalent effect as
     between Member States) preclude the imposition of                The Commission is wrong to take the view that the objectives
     the Normverbrauchsabgabe (basic duty and surcharge               regarding job creation have not been achieved. Seventeen crew
     respectively) mentioned in the first preliminary question?       members were recruited in the West Indies and twelve in Saint-
                                                                      Pierre-et-Miquelon. The permanent staff attached to the ship
                                                                      thus tallies with the estimates (55 posts) and eleven posts were
3.   Is imposition of the surcharge determined as part of the         created with the shipowners instead of the five projected.
     Normverbrauchsabgabe referred to in the first prelimi-
     nary question compatible with Sixth Council Directive
     (77/388/EEC) of 17 May 1977 (1) on the harmonization             Lastly, the French Government challenges the Commission’s
     of the laws of the Member States relating to turnover            assessment which finds that the economic consequences of the
     taxes Common system of value added tax: uniform                  aid for Saint-Pierre-et-Miquelon are inadequate. First, it submits
     basis of assessment, as amended by Council Directive             that the Commission could not evaluate the economic conse-
     91/680/EEC of 16 December 1991 (2) supplementing the             quences arising from the aid over the period 2001-2003 by
     common system of value added tax with a view to the              reference to a calculation involving the extrapolation of figures
     abolition of fiscal frontiers?                                   recorded for the years 1999 and 2000 without committing an
                                                                      error of law. Second, the Commission’s evaluation is based on
                                                                      errors of fact. In any event, even if the economic consequences
                                                                      for Saint-Pierre-et-Miquelon do not exceed the amount of the
(1) OJ 1997 L 145, p. 1.                                              aid, it is nevertheless appropriate to evaluate them in the
(2) OJ 1991 L 376, p. 1.                                              context of the archipelago, that is to say, by reference, in
                                                                      particular, to its size and economic potential.


title: Case T-106/05: Action brought on 22 February 2005 by European Dynamics S.A. against the Commission of the European Communities

text:
               14.5.2005

               EN

               Official Journal of the European Union

               C 115/29

         Action brought on 22 February 2005 by European Dynamics S.A. against the Commission of the European Communities
   (Case T-106/05)
   (2005/C 115/53)
   Language of the case: English
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 22 February 2005 by European Dynamics S.A., established in Athens (Greece), represented by N. Kostakopoulos, lawyer.
   The applicant claims that the Court should:

               —

               annul the Commission's decision not to short-list the applicant's application, filed in response to the International Restricted Tender EuropeAid/117579/C/SV/TR for the ‘Technical Assistance to improve the Information and Communication Technology System in the State Institute of Statistics of Turkey — Upgrading the Statistical System of Turkey’ (1) and to short-list other candidates;

               —

               annul the decision to reject the applicant's request to review its decision communicated to the applicant by the Commission's letter dated 13 December 2004;

               —

               order the Commission to pay the applicant's legal and other costs and expenses incurred in connection with this application, even if the current application is rejected.

         Pleas in law and main arguments
   The applicant company filed an application in response to the Commission's International Restricted Tender EuropeAid/117579/C/SV/TR for the ‘Technical Assistance to improve the Information and Communication Technology System in the State Institute of Statistics of Turkey — Upgrading the Statistical System of Turkey’. By the contested decision the applicant's application was not short-listed.
   In support of its application to annul the contested decision the applicant contends that the defendant violated Regulation 1488/1996, the Financial Regulation (2) and the regulation applying it, as well as Directive 92/50 (3) by using evaluation criteria, that were not well specified in the call for tenders. According to the applicant, if the Commission intended to proceed to a comparative analysis of the candidates' capacities, as it appears to have done, then it should have noted so in the call for tenders.
   The applicant also claims that the defendant committed manifest errors of appreciation in the evaluation of the bid it had submitted. The applicant contests the Commission's assessment of its technical capacity.
   The applicant finally submits that the Commission failed to provide adequate reasons for its decision, in violation of Article 253 EC.

      (1)  OJ 2004/S 187-158886.

      (2)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities, OJ L 248, 16/09/2002, p. 1.

      (3)  Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, OJ L 209, 24/07/1992, p. 1.


title: Case C-94/03: Action brought on 28 February 2003 by the Commission of the European Communities against the Council of the European Union

text:
26.4.2003              EN                          Official Journal of the European Union                                           C 101/27
Action brought on 28 February 2003 by the Commission                       Reference for a preliminary ruling by the Tribunal du
of the European Communities against the Council of the                     Travail de Bruxelles by judgment of that Court of 13 Feb-
                         European Union                                    ruary 2003 in the case of Mr Vincenzo Piliego against
                                                                                Centre Public d’Aide Sociale de Bruxelles, C.P.A.S.
                           (Case C-94/03)
                          (2003/C 101/45)                                                            (Case C-95/03)
An action against the Council of the European Union was                                             (2003/C 101/46)
brought before the Court of Justice of the European Communi-
ties on 28 February 2003 by the Commission of the European
Communities, represented by Götz zur Hausen, Lena Ström
and Elisabetta Righini, acting as agents, with an address for
service in Luxembourg.
                                                                           Reference has been made to the Court of Justice of the
The Applicant claims that the Court should:                                European Communities by judgment of the Tribunal du Travail
                                                                           de Bruxelles (Labour Court, Brussels) of 13 February 2003,
—     annul Council Decision of 19 December 2002 approving,                received at the Court Registry on 4 March 2003, for a
      on behalf of the European Community, the Rotterdam                   preliminary ruling in the case of Mr Vincenzo Piliego against
      Convention on the Prior Informed Consent Procedure for               Centre Public d’Aide Sociale de Bruxelles, C.P.A.S. on the
      certain hazardous chemicals and pesticides in inter-                 following questions:
      national trade (1); and
—     order the Council to pay the costs.                                  1.     Is Council Regulation (EEC) No 1612/68 of 15 October
                                                                                1968 ( 1) to be interpreted as applying to a national of a
                                                                                Member State who resides in another Member State in
                                                                                order to seek employment there, who is housed in a
                                                                                hostel approved by the public authorities where he
Pleas in law and main arguments                                                   performs genuine and effective work in return for board
                                                                                and lodging as part of a programme of rehabilitation by
                                                                                work arranged by that institution, and who applies to the
The Commission’s request for annulment of the Decision is                         social assistance services of the host State for a social
founded on the violation of the Treaty resulting from the                         benefit under a non-contributory system guaranteeing
erroneous choice of legal basis. The question of the legal basis                  minimum financial means of subsistence?
for the conclusion of the agreement cannot be regarded as
purely formal in nature. Rather, the choice between
Articles 133 and 175 EC has important implications for the
division of competence between the Community and its                       2.     In the alternative, is Community law, and especially
Member States. As the Court has stated repeatedly, the                            Articles 12 EC, 17 EC and 18 EC, to be interpreted as
Community’s competence in the field of trade is exclusive in                      meaning that notwithstanding the restrictions imposed
nature. This exclusivity is indispensable in order to ensure a                    by the domestic legislation of the host State, a citizen of
coherent and effective defence of the Community’s interest in                     the Union lawfully residing in a Member State of which
the field of international trade. In contrast, as follows from the                he is not a national is entitled, on the same conditions as
second subparagraph of Article 174(4) EC, the Community’s                         nationals of the host State, to social benefits under a non-
external competencies in the field of the environment are                         contributory system guaranteeing minimum financial
concurrent with those of the Member States. The choice of the                     means of subsistence? What if the host State decides to
legal basis has also consequences with regard to the procedures                   terminate the residence permit of such European citizen
for the adoption of the Community act.                                            because he does not have adequate resources to avoid
                                                                                becoming a burden on its social assistance system?
By basing its Decision concerning the conclusion of the PIC
Convention on Article 175(1) rather than Article 133 EC, the
Council has therefore violated the exclusive competence of the             (1 ) Regulation (EEC) No 1612/68 of the Council of 15 October 1968
Community for the conclusion of the PIC Convention.                             on freedom of movement for workers within the Community (OJ
                                                                                L 257 of 19.10.1968, p. 2).
( 1) OJ L 63 of 6.3.2003, p. 27.


title: Case T-305/02: Action brought on 3 October 2002 by Nestlé Waters France against Office for Harmonization in the Internal Market (Trade, Marks and Designs) (OHIM)

text:
C 305/26                EN                      Official Journal of the European Communities                                       7.12.2002
Pleas in law and main arguments                                            The applicant claims that the Court should:
                                                                           —     annul Decision R 719/2000-4 of the Fourth Board of
The applicant is contesting Article 3 of the Commission’s                        Appeal of the OHIM of 12 July 2002;
decision of 24 July 2002 in case COMP/E-3/36.700 —
Industrial and medical gases, in so far as it imposes a fine on            —     order OHIM to pay the costs.
the applicant for infringement of Article 81 EC. The applicant
is contesting only the fine imposed on it, and is not challenging
the facts established or the legal assessment thereof.
                                                                           Pleas in law and main arguments
The applicant claims that the contested decision is contrary to            The Community trade           The bottle comprises a main sec-
Article 15(2) of Regulation No 17 ( 1) and Article 253 EC. Fines           mark concerned:               tion with, at its base, a recess, in
to be imposed are to be determined by reference to the                                                   the shape of a slightly truncated
seriousness of the infringement and the duration thereof.                                                cone with, in its flat section, a
According to the applicant, that rule has been applied by the                                            stylised star in relief In the lower
Commission in an inequitable and unreasonable manner. The                                                part of the main section, which is
applicant maintains that undertakings which committed the                                                nearly cylindrical from bottom to
same infringement over the same period should be required,                                               top, there is an initial series of
under the terms of the decision, to pay a much smaller fine.                                             wavy grooves and, in the top
                                                                                part, which is of slightly smaller
                                                                                diameter and bobbin-shaped,
Furthermore, according to the applicant, the Commission, in                                              there are spiralling grooves which
choosing the addressees of the decision, the turnover attribu-                                           form lozenges when seen through
table to each of those addressees and the order to be applied                                            the bottle The upper section,
to the restriction of the fine to 10 % of turnover and the                                               which is the shape of a slightly
leniency rule, adopted a decision which cannot be objectively                                            truncated cone, ends in a cylindri-
justified and which does not justify the considerable differences                                        cal neck with a blue cap — Regis-
in the amounts of the fines imposed.                                                                     tration No 922179
                                                                           Goods or service:             Water (Class 32 of the inter-
The applicant also pleads infringement of the Community                                                  national classification).
principles of equality and proportionality and of the prohib-
ition precluding arbitrariness. According to the applicant,                Decision of the Board of      Refusal of examiner to register the
undertakings involved in a similar measure have been treated               Appeal:                       mark.
in an unequal way.
                                                                           Grounds of claim:             Infringement of Article 7(1)(b)
                                                                                and (e) of Regulation EEC No 40/
( 1) EEC Council: Regulation No 17: First Regulation implementing                                        94.
     Articles 85 and 86 of the Treaty (OJ, English Special Edition
     1959-1962, p. 87).
                                                                           Action brought on 7 October 2002 by Altana Pharma AG
                                                                           against the Office for Harmonisation in the Internal
Action brought on 3 October 2002 by Nestlé Waters                                        Market (Trade, Marks and Designs)
France against Office for Harmonization in the Internal
          Market (Trade, Marks and Designs) (OHIM)                                                  (Case T-307/02)
                         (Case T-305/02)                                                            (2002/C 305/57)
                         (2002/C 305/56)                                   (Language of the case to be determined pursuant to Article 131(2)
                                                                           of the Rules of Procedure — language in which the application was
                                                                                submitted: German)
                    (Language of the case: French)
                                                                           An action against the Office for Harmonisation in the Internal
An action against Office for Harmonization in the Internal                 Market (Trade, Marks and Designs) was brought before the
Market (Trade, Marks and Designs) (OHIM) was brought before                Court of First Instance of the European Communities on
the Court of First Instance of the European Communities on                 7 October 2002 by Altana Pharma AG, Konstanz (Germany),
3 October 2002 by Nestlé Waters France, whose registered                   represented by H. Becker, lawyer. N.V. Organon, Oss (Nether-
office is in Issy-les-Moulineaux (France), represented by Alain            lands), was an additional party to the proceedings before the
Cléry.                                                                     Board of Appeal.


title: Case C-153/12: Reference for a preliminary ruling from the Administrativen sad — Varna (Bulgaria), lodged on 30 March 2012 — Sani Treid EOOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno Upravlenie na Natsionalnata Agentsia za Prihodite

text:
               9.6.2012

               EN

               Official Journal of the European Union

               C 165/14

         Reference for a preliminary ruling from the Administrativen sad — Varna (Bulgaria), lodged on 30 March 2012 — Sani Treid EOOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno Upravlenie na Natsionalnata Agentsia za Prihodite
   (Case C-153/12)
   2012/C 165/22
   Language of the case: Bulgarian

      Referring court

   Administrativen sad — Varna

      Parties to the main proceedings

      Applicant: Sani Treid EOOD

      Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno Upravlenie na Natsionalnata Agentsia za Prihodite (Director of the ‘Appeals and Administration of Enforcement’ Directorate, for the City of Varna, at the Central Office of the National Revenue Agency)

      Questions referred

               1.

               Is the concept of a chargeable event within the meaning of Article 62(1) of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax to be interpreted as also covering cases of exempt transactions, including transactions effected by a person who does not have the status of a taxable person within the meaning of Title III of Directive 2006/112 or that of a person liable for payment within the meaning of Title XI, Chapter 1, Section 1, of that directive?

               2.

               Do Articles 62 and 63 of Directive 2006/112 preclude a national provision under which the chargeable event occurs at the time when the exempt transaction is performed, rather than at the time when the condition that that transaction be taxed is satisfied?

               3.

               Does Article 63 of Directive 2006/112 preclude a national provision and a national practice whereby the chargeable event in respect of a supply of parts of a building occurs not at the time when ownership is transferred but earlier, that is to say, at the time of the provision of the agreed consideration, which constitutes an exempt transaction effected by a person who does not have the status of a taxable person or that of a person liable for payment?

               4.

               Does Article 65 of Directive 2006/112 preclude a national provision which links the chargeability to VAT to a payment which is fully or partially determined in goods or services?

               5.

               Do Articles 73 and 80 of Directive 2006/112 preclude a national provision under which, where the consideration for a transaction is fully or partially determined in goods or services, the basis of assessment for taxation of that transaction is in all cases its open market value?

      (1)  OJ 2006 L 347, p. 1.


title: Case C-342/02: Action brought on 26 September 2002 by the Commission of the European Communities against the French Republic

text:
26.10.2002             EN                     Official Journal of the European Communities                                        C 261/11
ties on 20 September 2002 by the Commission of the                       represented by A. Bordes, acting as Agent, with an address for
European Communities, represented by D. Martin and H. Krep-              service in Luxembourg.
pel, acting as Agents.
The applicant claims that the Court should:                              The applicant claims that the Court should:
—     Declare that, by failing to define the necessary capabilities
                                                                         1.    Declare that, by failing to adopt and bring into force
      and aptitudes for persons designated for activities relating
                                                                               within the prescribed period the laws, regulations or
      to protective and preventive measures, the Grand Duchy
      of Luxembourg has failed to fulfil its obligations under                 administrative provisions necessary to comply with:
      Articles 10 and 249 EC and Article 7(8) of Council
      Directive 89/391/EEC of 12 June 1989 on the introduc-
      tion of measures to encourage improvements in the safety                 a)    Articles 4, 5, 6, 7, 8(3) and 9 of Council Directive
      and health of workers at work (1);                                             96/22/EC of 29 April 1996 concerning the prohib-
                                                                                ition on the use in stockfarming of certain substances
                                                                                having a hormonal or thyrostatic action and of
—     Order the Grand Duchy of Luxembourg to pay the costs.                          β-agonists, and repealing Directives 81/602/EEC,
                                                                                88/146/EEC and 88/299/EEC ( 1), and
                                                                               b)    Articles 9a(1), 9b, first indent, 13(b) and 15(2) of
Pleas in law and main arguments                                                      Council Directive 96/23/EC of 29 April 1996 on
                                                                                measures to monitor certain substances and residues
                                                                                thereof in live animals and animal products and
The Luxembourg authorities do not deny that they have failed,                        repealing Directives 85/358/EEC and 86/469/EEC
to date, to adopt laws or regulations defining the necessary                         and Decisions 89/187/EEC, 91/664/EEC ( 2),
capabilities and aptitude for persons designated for activities
relating to protective and preventive measures.
                                                                               France has failed to fulfil its obligations under the
                                                                               abovementioned directives and the third paragraph of
                                                                               Article 249 and the first paragraph of Article 10 of the
The Commission therefore takes the view that the Grand                         EC Treaty;
Duchy of Luxembourg has failed to fulfil its obligations under
the EC Treaty and Directive 89/391.
                                                                         2.    Order the French Republic to pay the costs.
( 1) OJ 1989 L 183, p. 1.
                                                                         Pleas in law and main arguments
                                                                         Under Article 249 of the EC Treaty, according to which a
Action brought on 26 September 2002 by the Com-                          directive is to be binding, as to the result to be achieved, upon
mission of the European Communities against the French                   each Member State to which it is addressed, Member States are
                             Republic                                    required to observe the time-limits laid down in directives for
                                                                         their transposition. That time-limit expired on 1 July 1997
                                                                         without the French Republic having brought into force the
                          (Case C-342/02)                                necessary provisions in order to comply with the directive
                                                                         referred to in the Commission’s application.
                          (2002/C 261/18)
                                                                         (1 ) OJ 1996 L 125, p. 3.
                                                                         (2 ) OJ 1996 L 125, p. 10.
An action against the French Republic was brought before the
Court of Justice of the European Communities on 26 Septem-
ber 2002 by the Commission of the European Communities,


title: JUDGMENT OF THE COURT (First Chamber) of 11 August 1995 in Case C-43/94 P: European Parliament v. Philippe Vienne (Official - Daily subsistence allowance - Cumulative benefits)

text:
14 . 10 . 95           EN                  Official Journal of the European Communities                                 No C 268/7
4 , the 1 0 % margin of manoeuvre provided for in the first            costs arising from the performance by the customs and
     subparagraph of Article 25 (2) of Regulation (EEC)                veterinary services of their tasks as providers of services in
     No 1 785/81 relates to the A and B quotas allocated to an         the public interest even if it has not been imposed by the
     undertaking, within the framework of the quota system             State but arises from an agreement concluded by that
     in force, by a national decision taken by the Member              undertaking with its customers.
     State on the basis of Article 24 of that Regulation,
     sharing out among the undertakings operating in its
     territory the basic A and B quantities allocated to it;           (>) OJ No C 76 , 12 . 3 . 1994 .
5 , the term 'restructuring plans ' within the meaning of the
     second subparagraph of Article 25 (2) of Regulation
     (EEC) No 1785/81 , allowing quotas to be adjusted in
     Italy without the 10% limit applying, refers to plans
     concerning the sugar sector as a whole at national or
     regional level.
                                                                                JUDGMENT OF THE COURT
(M OJ No C 59 , 26 . 2 . 1994 .
                                                                                ( First Chamber )
                                                                                of 11 August 1995
                                                                       in Case C-43/94 P: European Parliament v. Philippe
                                                                                Vienne H
                                                                       (Officiai — Daily subsistence allowance — Cumulative
                                                                                benefits)
                                                                                ( 95/C 268/14 )
               JUDGMENT OF THE COURT
                         ( Fifth Chamber)                                              (Language of the case: French)
                        of 11 August 1995
in Case C- 1 6/94 (reference for a preliminary ruling from the
French Cour de Cassation ): Édouard Dubois et Fils SA and               (Provisional translation; the definitive translation will be
Général Cargo Services SA v. Garonor Exploitation                                published in the European Court Reports)
                                SA (M
 (Transit charge payable under a private contract — Charge
                     having équivalent effect)                         In Case C-43/94 P : European Parliament ( agent: Ezio
                           ( 95/C 268/13 )                             Perillo ) — appeal against the judgment of the Court of First
                                                                       Instance of the European Communities ( Fourth Chamber )
                                                                        of 30 November 1993 in Case T-15/93 Vienne v . European
                                                                        Parliament [ 1993 ] ECR 11-1327, seeking to have that
                (Language of the case: French)                          judgment set aside — the other party to the proceedings
                                                                        being: Philippe Vienne, an official of the European
                                                                        Parliament, resident in Brussels, represented by Jean-Noël
 (Provisional translation; the definitive translation will be           Louis, of the Brussels Bar, with an address for service in
          published in the European Court Reports)                      Luxembourg at the office of SARL Fiduciaire Myson, 1 Rue
                                                                        Glesener — the Court ( First Chamber ), composed of: P.
                                                                       Jann ( Rapporteur ), President of the Chamber, D. A. O.
 In Case C- 1 6/94 : reference to the Court under Article 177 of        Edward and L. Sévon, Judges; P. Léger, Advocate-General;
 the EC Treaty from the French Cour de Cassation ( Court of             R. Grass, Registrar, has given a judgment on 11 August
 Cassation ) for a preliminary ruling in the proceedings                1995 , in which it:
 pending before that court between Édouard Dubois et Fils
 SA and Général Cargo Services SA and Garonor
 Exploitation SA — on the interpretation of Articles 9,12,13             1 , dismisses the appeal;
 and 16 of the EC Treaty — the Court ( Fifth Chamber ),
 composed of: C. Gulmann, President of the Chamber, P.
 Jann, J. C. Moitinho de Almeida, D. A. O. Edward                       2 , orders the Parliament to pay the costs.
 (Rapporteur) and L. Sévon, Judges; A. M. La Pergola,
 Advocate-General ; H. von Holstein, for the Registrar, has
 given a judgment on 11 August 1995, in which it rules:              , (!) OJ No C 76 , 12 . 3 . 1994 .
 Articles 9 and 12 of the EC Treaty apply to a transit charge
 designed to compensate a private undertaking for bearing


title: Case T-50/05: Action brought on 28 January 2005 by European Dynamics SA against the Commission of the European Communities

text:
               30.4.2005

               EN

               Official Journal of the European Union

               C 106/27

         Action brought on 28 January 2005 by European Dynamics SA against the Commission of the European Communities
   (Case T-50/05)
   (2005/C 106/60)
   Language of the case: English
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 28 January 2005 by European Dynamics SA, established in Athens (Greece), represented by N. Korogiannakis, lawyer.
   The applicant claims that the Court should:

               —

               annul the decision of the Commission (DG TAXUD), to evaluate the applicant's bid as not successful and award the contract to the successful contractor;

               —

               order the Commission to pay the applicant's legal costs and other costs and expenses incurred in connection with the application, even if the application is rejected.

         Pleas in law and main arguments
   The applicant company filed a bid in response to the Commission's call for tenders TAXUD/2004/AO-004 for the specification, development, maintenance and support of telematic systems to control the movements of products subject to excise duty within the European Community. By the contested decision this bid was rejected and the contract awarded to another bidder.
   In support of its application for annulment of that decision the applicant claims first of all that the Commission violated the principle of non-discrimination and of free competition. The unavailability of exact specifications for the EMCS system prevented tenderers from presenting their expertise in a targeted manner in the specific areas that were important for the project. The access to privileged information by the previous and current contractors constituted a major and exclusive advantage for them. The applicant claims that its timely request for equal access rights to such applications and documentation should have been accepted. According to the applicant, even though the Commission had the opportunity to remedy this situation it did not take appropriate measures to do so.
   The applicant further submits that the Commission violated Article 97(1) of the Financial Regulation (1) as well as Article 17(1) of Directive 92/50 (2) by using evaluation criteria that were extremely vague and were not accompanied by clear quantifiable parameters.
   The applicant further considers that the Commission committed manifest errors of appreciation in its evaluation of the applicant's tender. In this respect the applicant contends that any deficiencies of its bid were due to the Commission's failure to communicate critical elements required by the applicant in order to prepare its bid. The applicant further contests each of the statements contained in the report of the Evaluation Committee.
   The applicant also invokes a violation, by the Commission, of its obligation, under Article 253 EC, to state reasons and a failure to provide pertinent information requested by the applicant on the grounds for the rejection of its bid. The applicant also submits that the Commission violated the principle of good administration and diligence by acting with significant delay and by not offering adequate answers to the applicant's requests for information prior to the submission of the bids.

      (1)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities, OJ L 248, 16/09/2002 p. 1.

      (2)  Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, OJ L 209, 24/07/1992 p. 1.