title: Judgment of the Court (Third Chamber) 19 February 2002 in Case C-295/00: Commission of the European Communities v Italian Republic (Failure by a Member State to fulfil its obligations — Infringement of Article 1 of Regulation (EEC) No 4055/86 — Disembarkation/embarkation tax payable by passengers — Tax not applicable to passengers travelling between ports on Italian territory)

text:
C 109/12                   EN                      Official Journal of the European Communities                                               4.5.2002
1.    Declares that, by requiring undertakings engaged in the                 1.    Declares that, by maintaining in force a tax applicable to
      provision of temporary labour which are established in other                  passengers embarking and disembarking in the ports of Genoa,
      Member States to maintain their registered office or a branch                 Naples and Trieste (Italy) when arriving from or travelling to
      office on Italian territory, and so lodge a guarantee of ITL                  ports in another Member State or a third country, but not in
      700 million with a credit institution having its registered office            the case of carriage between two ports located on Italian
      or a branch office on Italian territory, the Italian Republic has             territory, the Italian Republic has failed to fulfil its obligations
      failed to fulfil its obligations under Articles 49 EC and 56 EC.              under Article 1 of Council Regulation (EEC) No 4055/86 of
                                                                                22 December 1986 applying the principle of freedom to
2.    Orders the Italian Republic to pay the costs.                                 provide services to maritime transport between Member States
                                                                                and between Member States and third countries;
(1) OJ C 259 of 9.9.2000.
                                                                              2.    Orders the Italian Republic to pay the costs.
                                                                              (1) OJ C 285 of 7.10.2000.
                  JUDGMENT OF THE COURT
                            (Third Chamber)
                            19 February 2002
                                                                                JUDGMENT OF THE COURT
in Case C-295/00: Commission of the European Communi-
                       ties v Italian Republic (1)
                                                                                (Fifth Chamber)
(Failure by a Member State to fulfil its obligations —
Infringement of Article 1 of Regulation (EEC) No 4055/86
— Disembarkation/embarkation tax payable by passengers                                                   27 February 2002
— Tax not applicable to passengers travelling between ports
                           on Italian territory)
                                                                              in Case C-302/00: Commission of the European Communi-
                                                                                ties v French Republic (1)
                             (2002/C 109/18)
                      (Language of the case: Italian)                         (Failure by a Member State to fulfil its obligations —
                                                                              Directives 95/59/EC and 92/79/EEC — Article 95 of the EC
                                                                              Treaty (now, after amendment, Article 90 EC) — Taxes
(Provisional translation; the definitive translation will be published
                                                                              affecting the consumption of manufactured tobaccos —
                     in the European Court Reports)
                                                                              Minimum reference price for all cigarettes of the same brand
                                                                              — Different rates of tax on dark-tobacco and light-tobacco
                                                                                cigarettes)
In Case C-295/00, Commission of the European Communities
(agents: E. Traversa and B. Mongin) v Italian Republic (agent:
U. Leanza, assisted by G. De Bellis): Application for a                                                   (2002/C 109/19)
declaration that, by maintaining in force a tax applicable to
passengers embarking and disembarking in the ports of Genoa,
Naples and Trieste (Italy) when arriving from or travelling to                                      (Language of the case: French)
ports in another Member State or a third country, but not in
the case of carriage between two ports located on Italian
territory, the Italian Republic has failed to fulfil its obligations          (Provisional translation; the definitive translation will be published
under Article 1 of Council Regulation (EEC) No 4055/86 of                                          in the European Court Reports)
22 December 1986 applying the principle of freedom to
provide services to maritime transport between Member States
and between Member States and third countries (OJ 1986
L 378, p. 1), the Court (Third Chamber), composed of:
F. Macken, President of the Chamber, C. Gulmann and                           In Case C-302/00, Commission of the European Communities
J.-P. Puissochet (Rapporteur), Judges; S. Alber, Advocate Gen-                (Agents: E. Traversa and C. Giolito) v French Republic (Agents:
eral; R. Grass, Registrar, has given a judgment on 19 February                G. de Bergues and S. Seam): for a declaration that by
2002, in which it:                                                            maintaining in force:


title: JUDGMENT OF THE COURT of 14 July 1998 in Case C-284/95 (reference for a preliminary ruling from the Giudice di Pace di Genova (Italy)): Safety Hi-Tech Srl v. S. & T. Srl (Regulation (EC) No 3093/94 - Measures to protect the ozone layer - Restrictions on the use of hydrochlorofluorocarbons and halons - Validity)

text:
26.9.98               EN                  Official Journal of the European Communities                                      C 299/3
     by citizens of the European Union residing in a                 2. consideration of the questions submitted has not
     Member State of which they are not nationals, the                    disclosed any factor of such a kind as to affect the
     Kingdom of Belgium has failed to fulfil its obligations              validity of Regulation (EC) No 3093/94.
     under the first paragraph of Article 14 of that
     Directive;
                                                                     (1) OJ C 268, 14.10.1995.
                                                                     (2) OJ L 333, 22.12.1994, p. 1.
2. orders the Kingdom of Belgium to pay the costs.
(1) OJ C 331, 1.11.1997.
(2) OJ L 368, 31.12.1994. p. 38.
                                                                                JUDGMENT OF THE COURT
                                                                                of 14 July 1998
                                                                     in Case C-341/95 (reference for a preliminary ruling from
                                                                     the Pretura Circondariale di Avezzano (Italy)): Gianni
                                                                                Bettati v. Safety Hi-Tech Srl (1)
               JUDGMENT OF THE COURT
                       of 14 July 1998                               (Regulation (EC) No 3093/94 Ð Measures to protect the
                                                                                ozone layer Ð Restrictions on the use of
in Case C-284/95 (reference for a preliminary ruling from                  hydrochlorofluorocarbons and halons Ð Validity)
the Giudice di Pace di Genova (Italy)): Safety Hi-Tech Srl
                       v. S. & T. Srl (1)                                                     (98/C 299/04)
(Regulation (EC) No 3093/94 Ð Measures to protect the
           ozone layer Ð Restrictions on the use of
                                                                                (Language of the case: Italian)
      hydrochlorofluorocarbons and halons Ð Validity)
                         (98/C 299/03)
                                                                       (Provisional translation; the definitive translation will be
                (Language of the case: Italian)                                published in the European Court Reports)
                                                                     In Case C-341/95: reference to the Court under Article 177
  (Provisional translation; the definitive translation will be       of the EC Treaty from the Pretura Circondariale di
          published in the European Court Reports)                   Avezzano (Italy) for a preliminary ruling in the
                                                                     proceedings pending before that court betrween Gianni
                                                                     Bettati and Safety Hi-Tech Srl Ð on the validity of
                                                                     Article 5 of Council Regulation (EC) No 3093/94 of
In Case C-284/95: reference to the Court under Article 177           15 December 1994 on substances that deplete the ozone
of the EC Treaty from the Giudice di Pace di Genova                  layer (2) Ð the Court, composed of: G. C. Rodríguez
(Italy) for a preliminary ruling in the proceedings pending          Iglesias, President, C. Gulmann, H. Ragnemalm and M.
before that court between Safety Hi-Tech Srl and S. & T.             Wathelet, Presidents of Chambers, G. F. Mancini, J. C.
Srl Ð on the interpretation and validity of Council                  Moitinho de Almeida, P. J. G. Kapteyn, D. A. O. Edward,
Regulation (EC) No 3093/94 of 15 December 1994 on                    P. Jann, L. Sevón and K. M. Ioannou (Rapporteur),
substances that deplete the ozone layer (2) Ð the Court,             Judges; P. LeÂger, Advocate General; H. A. Rühl, Principal
composed of: G. C. Rodríguez Iglesias, President, C.                 Administrator, for the Registrar, has given a judgment on
Gulmann, H. Ragnemalm and M. Wathelet, Presidents of                 14 July 1998 in which it ruled:
Chambers, G. F. Mancini, J. C. Moitinho de Almeida,
P. J. G. Kapteyn, D. A. O. Edward, P. Jann, L. Sevón and
K. M. Ioannou (Rapporteur), Judges; P. LeÂger, Advocate
General; H. A. Rühl, Principal Administrator, for the                consideration of the question submitted has not disclosed
Registrar, has given a judgment on 14 July 1998 in which             any factor of such a kind as to affect the validity of
it ruled:                                                            Council Regulation (EC) No 3093/94 of 15 December
                                                                     1994 on substances that deplete the ozone layer.
1. Article 5 of Council Regulation (EC) No 3093/94 of                (1) OJ C 351, 30.12.1995.
     15 December 1994 on substances that deplete the                 (2) OJ L 333, 22.12.1994, p. 1.
     ozone layer must be interpreted as prohibiting entirely
     the use and, consequently, the marketing of
     hydrochlorofluorocarbons for firefighting;


title: Judgment of the Court of First Instance of 30 September 2003 in Case T-296/01, Antonio Tatti v Commission of the European Communities (Community officials — Staff report — Tardiness — Irregularities in reporting procedure — Action for annulment — Action for damages)

text:
29.11.2003                EN                          Official Journal of the European Union                                            C 289/21
Baere, lawyer, with an address for service in Luxembourg, v                   1.    Annuls the decision adopting the decision adopting the appli-
Commission of the European Communities (Agent: R. Wain-                             cant’s definitive staff report for the period 1 July 1995 to
wright): Application for annulment of Commission Regulation                         30 June 1997.
(EC) No 1400/2001 of 10 July 2001 concerning the classifi-
cation of certain goods in the Combined Nomenclature (OJ                      2.    Orders the Commission to pay the applicant EUR 1 500 by
2001 L 189, p. 5); corrigendum published in the German,                             way of compensation for non-material damages.
English, Finnish, Portuguese and Swedish editions (OJ 2001
L 191, p. 49), the Court of First Instance (Third Chamber),
composed of: K. Lenaerts, President, J. Azizi and M. Jaeger,                  3.    Orders the Commission to pay the costs.
Judges; J. Plingers, Administrator, for the Registrar, has given a
judgment on 30 September 2003, in which it:
                                                                              (1) OJ 2002 C 56 of 2.3.02.
1.    Annuls Commission Regulation (EC) No 1400/2001 of
      10 July 2001 concerning the classification of certain goods in
      the Combined Nomenclature (OJ 2001 L 189, p. 5) in so far
      as it classifies the console described in column 1 of the table in
      the Annex to that regulation under CN Code 9504 10 00 and
      the accompanying CD-ROM under CN Code 8524 39 90;
2.    Dismisses the request for production of the defendant’s legal
      opinion;                                                                    JUDGMENT OF THE COURT OF FIRST INSTANCE
3.    Orders the defendant to pay all the costs.
                                                                                of 30 September 2003
(1) OJ C 3 of 5.1.2002.
                                                                              in Case T-214/02, María-Angeles Martínez Valls v Euro-
                                                                                pean Parliament (1)
                                                                              (Community officials — Competition — Non-admission to
                                                                                oral tests — Access to documents)
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                (2003/C 289/45)
                        of 30 September 2003
                                                                                (Language of the case: French)
in Case T-296/01, Antonio Tatti v Commission of the
                     European Communities (1)
(Community officials — Staff report — Tardiness —                             In Case T-214/02, María-Angeles Martínez Valls, residing in
Irregularities in reporting procedure — Action for annul-                     Brussels (Belgium), represented by Georges Vandersanden and
                    ment — Action for damages)                                L. Levi, lawyers, against the European Parliament (Agents:
                                                                              H. von Hertzen and D. Moore) — application, first, for
                                                                              annulment of the letters of 3 April and 31 May 2002 by which
                            (2003/C 289/44)                                   the Selection Board found that the applicant had obtained
                                                                              insufficient marks in the written tests in competition PE/90/A
                      (Language of the case: French)                          and, with respect to the letter of 31 May 2002, by which the
                                                                              Selection Board rejected the applicant’s request seeking access
                                                                              to certain documents and, second, for compensation for the
                                                                              loss suffered as a result of those letters, the Court of First
In Case T-296/01, Antonio Tatti, official of the Commission                   Instance (Fifth Chamber), composed of R. García-Valdecasas,
of the European Communities, residing in Overijse (Belgium),                  President, and P. Lindh and J.D. Cooke, Judges, I. Natsinas,
represented by L. Vogel, lawyer, with an address for service                  Administrator for the Registrar, has given a judgment on
in Luxembourg, against the Commission of the European                         30 September 2003, in which it:
Communities (Agent: C. Berardis-Kayser), application, first, for
annulment of the decision adopting the applicant’s definitive
staff report for the period 1 July 1995 to 30 June 1997 and,                  1.    Holds that there is no need to rule on the application for
second, for damages, the Court of First Instance (Fourth                            annulment of the letter of 31 May 2002 in so far as it rejects
Chamber), composed of V. Tiili, President, and P. Mengozzi                          the request for access to documents.
and M. Vilaras, Judges; D. Christensen, Administrator, for the
Registrar, has given a judgment on 30 September 2003, in                      2.    Orders the Parliament to pay the applicant EUR 1 by way of
which it:                                                                           damages for non-material damage.


title: Case C-3/07: Judgment of the Court (Eighth Chamber) of 8 November 2007 — Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Directive 2003/110/EC — Assistance in cases of transit — Removal by air — Failure to transpose within the period prescribed)

text:
               22.12.2007

               EN

               Official Journal of the European Union

               C 315/21

         Judgment of the Court (Eighth Chamber) of 8 November 2007 — Commission of the European Communities v Kingdom of Belgium
   (Case C-3/07) (1)

   (Failure of a Member State to fulfil obligations - Directive 2003/110/EC - Assistance in cases of transit - Removal by air - Failure to transpose within the period prescribed)
   (2007/C 315/35)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: M. Condou-Durande and R. Troosters, Agents)

      Defendant: Kingdom of Belgium (represented by: S. Raskin, Agent)
   Re:
   Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, the measures necessary to comply with Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the purposes of removal by air (OJ 2003 L 321, p. 26)
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the purposes of removal by air, with the exception of Article 5(2) of that directive, the Kingdom of Belgium has failed to fulfil its obligations thereunder;

               2.

               Dismisses the action in respect of the failure to transpose Article 5(2) of Directive 2003/110;

               3.

               Orders the Kingdom of Belgium to pay the costs.

      (1)  OJ C 69, 24.3.2007.


title: Case C-450/15: Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 24 August 2015 — Autorità Garante della Concorrenza e del Mercato v Italsempione — Spedizioni Internazionali SpA

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/17

         Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 24 August 2015 — Autorità Garante della Concorrenza e del Mercato v Italsempione — Spedizioni Internazionali SpA
   (Case C-450/15)
   (2015/C 381/20)
   Language of the case: Italian

      Referring court

   Consiglio di Stato

      Parties to the main proceedings

      Applicant: Autorità Garante della Concorrenza e del Mercato

      Defendant: Italsempione — Spedizioni Internazionali SpA

      Question referred

   Does the principle of proportionality, which must guide the process of quantifying fines — as affirmed by Article 49 of the Charter of Fundamental Rights of the European Union — preclude an interpretation of Article 23(2)(a) of Regulation No 1/2003 (1), in the version consolidated by the European Commission through the Guidelines on the method of setting fines (2006/C 201/02), and practice, including national practice, according to which the fine to be applied to undertakings which have breached the prohibition of anti-competitive agreements is to be calculated by applying the circumstances to the basic amount resulting from the calculation of the various factors which have to be taken into account under EU law, and in any event before the reduction to 10 % of turnover, with the risk that the application of the extenuating circumstances to the basic amount may prove entirely unsuitable for having the effect of personalising the fine, the circumstances of which, by contrast, are predetermined by the adjustment of the relevant amount according to the characteristics of the specific case?

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).


title: Action brought on 18 December 1998 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland (Case C-466/98)

text:
13.3.1999              EN                Official Journal of the European Communities                                     C 71/7
(b) Does Article 73b of the EC Treaty apply retroactively          Justice of the European Communities on 18 December
     to mortgages which were registered in German marks             1998 by the Commission of the European Communities,
     prior to the accession of Austria to the European              represented by Frank Benyon, Legal Adviser, acting as
     Community, and thus incurably void at the time of              Agent, with an address for service in Luxembourg at the
     registration, in such a way as to remedy them ex post          office of Carlos Gómez de la Cruz, member of the Legal
     facto?'                                                        Service of the Commission, Centre Wagner.
     Alternatively,
                                                                    The Applicant claims that the Court should:
     Have the Community rules concerning the free
     movement of capital, in particular Article 73b of the
     EC Treaty, had the effect, by virtue of the accession
     application made by Austria on 17 July 1989 and the            1) declare that by concluding and applying an Air
     Opinion of 31 July 1991, of rendering the registration             Services Agreement signed on 23 July 1977 with the
     of a foreign-currency mortgage in Austria on                       United States of America which provides for the
     16 December 1991 permissible?'                                     revocation, suspension or limitation of traffic rights in
                                                                        cases where air carriers designated by the United
                                                                        Kingdom are not owned by the United Kingdom or
                                                                        nationals of the United Kingdom, the United Kingdom
                                                                        is in breach of Article 52 of the Treaty;
Reference for a preliminary ruling by the Oberlandes-
gericht Köln by order of 2 December 1998 in the case of
Verein gegen Unwesen in Handel und Gewerbe Köln e.V.                2) order the United Kingdom to pay the costs.
                       v Adolf Darbo AG
                        (Case C-465/98)
                         (1999/C 71/12)                             Pleas in law and main arguments adduced in support:
Reference has been made to the Court of Justice of the
European Communities by order of 2 December 1998                    A Member State must allow nationals of any other
from the Oberlandesgericht Köln (Higher Regional Court,             Member State to set up businesses and pursue the same on
Cologne), which was received at the Court Registry on               national conditions: anything less would render the right
18 December 1998, for a preliminary ruling in the case of           of establishment pointless, an empty shell. Article 52 is
Verein gegen Unwesen in Handel und Gewerbe Köln e.V. v              not concerned with how and whether the right to supply
Adolf Darbo AG on the following question:                           services to another Member State may be exercised or
                                                                    restricted (which is governed at Community level by a
                                                                    separate Treaty article, Article 59) but, simply with the
Is it contrary to Article 2(1)(a)(i) of Directive 79/112/EEC
                                                                    right to be treated as a national of the Member State for
(OJ L 33, 8.2.1979, p. 1) (the directive on labelling') for
                                                                    the purposes of its business where an undertaking is
jam manufactured in a Member State (Austria) and sold
                                                                    established in that same Member State.
there and in another Member State (the Federal Republic
of Germany) under the description naturrein' (naturally
pure') to contain the gelling agent pectin and less than
0.01 mg/kg lead (atomic absorption spectrometry analysis
Ð AAS), 0.008 mg/kg cadmium (AAS), and pesticides                   Article 52 by its very nature does not refer to treatment
(0.016 mg/kg procymidone and 0.005 mg/kg vinclozolin)?              under Community law (for example the rights granted
                                                                    under Regulation (EEC) No 2408/92 (1)) as the United
                                                                    Kingdom alleges, but to those granted nationally, in the
                                                                    present case, the rights which the United Kingdom
                                                                    correctly notes derive from bilateral Member State
                                                                    agreements with third countries'. By concluding a
                                                                    so-called open sky' agreement, the United Kingdom
Action brought on 18 December 1998 by the Commission                authorities have granted a right to benefit from the traffic
of the European Communities against the United                      rights granted under the agreement to designated airlines
       Kingdom of Great Britain and Northern Ireland                if under United Kingdom control since there is no
                        (Case C-466/98)                             possibility for the United States to refuse the same, but
                                                                    they have granted only a possibility, wholly unguaranteed,
                         (1999/C 71/13)                             to benefit therefrom where the designated carrier is
                                                                    controlled by nationals of other Member States. This is a
                                                                    failure by the United Kingdom to grant equal treatment to
An action against the United Kingdom of Great Britain               nationals of other Member States irrespective of whether
and Northern Ireland was brought before the Court of                and how the United States of America excercises its rights.
 ---pagebreak--- C 71/8                 EN               Official Journal of the European Communities                                       13.3.1999
Finally, the United Kingdom authorities' allegation that                     agreement with the USA in the air-transport sector,
the ownership and control provision of the agreement is                      the Kingdom of Denmark acted in breach of the
preserved under Article 234 since it reproduces a clause                    EC Treaty, in particular Articles 5 and 52 thereof,
couched in similar terms which was contained in the                          and also contrary to the secondary law adopted
United Kingdom/United States air service agreement' of                       thereunder, in particular Council Regulation (EEC)
1946 cannot be accepted. Firstly, Article 234 does not                       No 2407/92 (1) of 23 July 1992 on licensing of air
apply to agreements concluded after the accession of the                     carriers, Council Regulation (EEC) No 2408/92 (1)
United Kingdom in 1973; this agreement was concluded                         of 23 July 1992 on access for Community air
thereafter, in 1977. Secondly, even were Article 234 able                    carriers to intra-Community routes, Council
to be invoked, quod non, Article 234 does not simply                         Regulation (EEC) No 2409/92 (1) of 23 July 1992
preserve previous agreements but rather, in its second                       on fares and rates for air services, Council
paragraph, obliges the Member State to take all                              Regulation (EEC) No 2299/89 (2) of 24 July 1989,
appropriate steps to eliminate incompatibilities with the                    as amended by Council Regulation (EEC)
Treaty and with the rules enacted pursuant thereto. The                      No 3089/93 (3) of 29 October 1993, on a code of
United Kingdom does not indicate the taking of any such                      conduct for computerised reservation systems, and
appropriate steps or endeavours whatsoever to amend the                      Council Regulation (EEC) No 95/93 (4) of
offending provisions and this notwithstanding the clear                      18 January 1993 on common rules for the
indication of the incompatibilities with the Treaty pointed                  allocation of slots at Community airports;
out by the Commission on several occasions.
(1) Council Regulation (EEC) No 2408/92 of 23 July 1992 on
    access for Community air carriers to intra-Community air
    routes (OJ L 240, 24.8.1992, p. 8).                                  Ð in the alternative, that, in so far as provisions
                                                                             retained from the 1944/1954 agreement are
                                                                             concerned, in the event that the 1995 agreement
                                                                             cannot be regarded as having radically amended
                                                                             and      thus    replaced      agreements     previously
                                                                             concluded, the Kingdom of Denmark infringed
                                                                             Article 234 of the EC Treaty by not rescinding
                                                                             provisions in the agreement which are
                                                                             incompatible with the EC Treaty, in particular
Action brought on 18 December 1998 by the Commission                         Article 52, and with the secondary law adopted
of the European Communities against the Kingdom of                           thereunder, and by failing to adopt the necessary
                            Denmark                                          legal measures to that effect;
                        (Case C-467/98)
                         (1999/C 71/14)
                                                                   2. Order the Kingdom of Denmark to pay the costs of
                                                                         the present proceedings.
An action against the Kingdom of Denmark was brought
before the Court of Justice of the European Communities
on 18 December 1998 by the Commission of the
European Communities, represented by Frank Benyon and
Hans Peter Hartvig, Legal Advisers, acting as Agents, with
an address for service in Luxembourg at the office of
Carlos Gómez de la Cruz, of the Commission's Legal                 The pleas in law and main arguments in support are
Service, Wagner Centre, Kirchberg.                                 similar to those in Case C-471/98 (5).
                                                                   (1 ) OJ L 240, 24.8.1992, pp. 1, 8 and 15 respectively.
The applicant claims that the Court should:                        (2 ) OJ L 220, 29.7.1989, p. 1.
                                                                   (3 ) OJ L 278, 11.11.1993, p. 1.
                                                                   (4 ) OJ L 14, 22.1.1993, p. 1.
                                                                   (5 ) See p. 10 of the present Official Journal.
1. Declare:
     Ð primarily, that, by having in 1995 individually
         negotiated, signed and concluded an Open Skies'


title: Case C-185/02: Action brought on 17 May 2002 by Commission of the European Communities against Portuguese Republic

text:
C 180/10                 EN                    Official Journal of the European Communities                                        27.7.2002
4.    in the alternative, refer the case back to the Court of First       —     Error in law, when applying Articles 87 and 88 EC and
      Instance for judgment, if the Court of Justice should deem                Article 1 of Council Regulation (EC) No 659/1999 of
      that appropriate;                                                         22 March 1999 laying down detailed rules for the
                                                                                application of Article 93 of the EC Treaty (1), for consider-
                                                                                ing that the tax credit is not existing aid, and lack of
                                                                                statement of reasons: in the event that the Court should
5.    order the Commission to pay the costs in both sets of                     take the view that the Commission’s criteria regarding tax
      proceedings.                                                              measures have changed, the tax credit constitutes existing
                                                                                aid.
                                                                          —     Error in law for not considering applicable the principle
                                                                                of legitimate expectations: when Demesa applied for and
                                                                                was granted the tax credit, it was evident that the
                                                                                Commission’s criteria for deciding whether tax measures
Pleas in law and main arguments                                                 constituted State aid were very different from the present
                                                                                criteria. Since that was the situation at the material time,
                                                                                it seems excessive for the Court of First Instance to require
                                                                                Demesa to take the step of verifying whether the tax
—     Error in law in applying Article 87 EC to the 45 % tax                    measure under the legislation applicable to it fulfilled
      credit on investment and lack of statement of reasons in                  the requirements laid down in Article 87 and should,
      the judgment with regard to that aspect:                                  therefore, be notified to the Commission. Not even the
                                                                                Commission was certain in that respect, given its failure
                                                                                to act with regard to the measure concerned.
      —     Discretion of the public authorities: at issue in the
            proceedings before the Court of First Instance was
                                                                          (1) OJ 1999 L 83.
            Norma Foral No 22/1994 specifically as applied to
            the undertaking Demesa rather than in general,
            which is the subject of another decision of the
            Commission on State aid and of another action for
            annulment. As may be inferred from the decision
            granting application of the tax credit to Demesa,
            which constituted the subject-matter of proceedings
            before the Court of First Instance, the Diputación
            Foral de Alava merely applies the provision as
            it stands, without imposing any conditions. The               Action brought on 17 May 2002 by Commission of the
            existence of prior authorisation of the public auth-              European Communities against Portuguese Republic
            orities is entirely logical and sought by the undertak-
            ings themselves. In fact, such prior oversight gives
            ample legal certainty to the undertakings covered by                                    (Case C-185/02)
            that provision, since it implies that Hacienda Foral
            (regional finance ministry) has approved the
            amounts invested, including assets, etc, instead of                                     (2002/C 180/18)
            the uncertainty which would be entailed by the
            automatic application of the tax incentive and the
            possible subsequent inspection.
                                                                          An action against the Portuguese Republic was brought before
                                                                          the Court of Justice of the European Communities on 17 May
      —     requirement to invest ESP 2 500 million: this                 2002 by the Commission of the European Communities,
            requirement does not make the measure selective,              represented by António Caeiros, acting as Agents, with an
            since it is applied objectively to all undertakings in        address for service in Luxembourg.
            all sectors which invest that amount and is not
            restricted to undertakings with considerable finan-
            cial resources.                                               The applicant claims that the Court should:
      Even if it were selective, the tax credit would still be            —     Declare that, by failing to notify the plans and projects
      justified by the nature or scheme of the system in that it                provided for in Article 11 of Council Directive 96/
      is not an exceptional measure but a provision of general                  59/EC (1) of 16 September 1996 on the disposal of
      scope which applies to any undertaking making an initial                  polychlorinated biphenyls and polychlorinated terphen-
      investment in Alava which fulfils the requisite conditions                yls (PCB/PCT) and the summary of inventories provided
      laid down in the legislation in issue; such conditions                    for in Article 4(1) of the directive, the Portuguese Republic
      cannot in any event be described as extraordinary or                      has failed to fulfil its obligations under those provisions;
      discriminatory.                                                           and
 ---pagebreak--- 27.7.2002                EN                     Official Journal of the European Communities                                       C 180/11
—     Order the Portuguese Republic to pay the costs.                      The appellant claims that the Court should:
                                                                           1.    declare the present appeal admissible and consequently:
Pleas in law and main arguments
The Commission is of the view that the Portuguese Republic                 2.    set aside the judgment of the Court of First Instance of
has still not notified to it the plans and projects required by                  6 March 2002;
Article 11 of Directive 96/59/EC. The ‘National plan for the
decontamination and/or disposal of equipment listed in the
inventories and of the PCB contained in such equipment’                    3.    itself give final judgment in the matter on the basis of the
forwarded by the Portuguese Government, not having been                          appellant’s pleadings at first instance and, in particular,
adopted by the Government or published in the Diário da                         annul the decision of the Commission of 24 February
República (official gazette), does not appear to be binding.                    1999 inasmuch as the tax credit of 45 % of investment
Moreover, it fails to deal with a number of questions or                         provided for by the Norma Foral de Alava (Alava regional
restricts itself, with regard to others, to statements of intention.             Law) No 22/1994 does not constitute aid within the
Finally, it does not contain any reference to timings (timetable)                meaning of Article 87 EC or, if it should be deemed so to
for the measures which the Portuguese authorities intend to                      be, is existing aid, pursuant to Article 88 EC and Article 1
implement.                                                                       of the State aid Rules;
The Portuguese authorities have still not drawn up an inventory            4.    in the alternative, to refer the case back to the Court of
of the equipment containing in excess of 5 dm3 of PCB in                         First Instance for judgment, if the Court of Justice should
accordance with Article 4(1) of Directive 96/59/EC. Thus, the                    deem that appropriate;
‘summary’ which the Portuguese Government claims to have
transmitted to the Commission cannot be regarded as a
summary within the meaning of Article 4.                                   5.    order the Commission to pay the costs in both sets of
                                                                                proceedings.
(1) OJ 1996 L 243, p. 31.
                                                                           Pleas in law and main arguments
Appeal brought on 21 May 2002 against the judgment
delivered on 6 March 2002 by the Third Chamber,                            are similar to the first two pleas in law in Case C-183/02 P (1),
Extended Composition, of the Court of First Instance of                    together with a third plea in law:
the European Communities in Joined Cases T-127/99,
T-129/99 and T-148/99 (not yet published) between
Territorio Histórico de Álava — Diputación Foral de                     —     infringement of Community law inasmuch as there was
Álava and Others and Commission of the European                                 no finding of misuse of powers by the Commission and
                            Communities                                          no reasons were provided in that respect: the public
                                                                                at large is extremely well-aware of the problems at
                                                                                Community level for harmonising tax, which would
                          (Case C-187/02 P)
                                                                                allow undertakings and private individuals to operate in
                                                                                fairer conditions. The unwillingness of a number of
                           (2002/C 180/19)                                       Member States makes it impossible to achieve the necess-
                                                                                ary level of agreement within the Council. By means of
                                                                                the indirect route of State aid proceedings, in which the
                                                                                Commission enjoys wide powers, that institution has
An appeal against the judgment delivered on 6 March 2002                         succeeded in doing away with ‘controversial’ tax
by the Third Chamber, Extended Composition, of the Court of                      measures.
First Instance of the European Communities in Joined Cases
T-127/99, T-129/99 and T-148/99 between Territorio His-
tórico de Álava — Diputación Foral de Álava and Others and
Commission of the European Communities was brought                         (1) See p. 9 of this Official Journal.
before the Court of Justice of the European Communities on
21 May 2002 by Territorio Histórico de Alava — Diputación
Foral de Alava, represented by Antonio Creus Carreras and
Begoña Uriarte Valiente, Abogados, of Calle Velázquez No 63,
Madrid.


title: Case C-657/15 P: Appeal brought on 7 December 2015 by Viasat Broadcasting UK Ltd against the judgment of the General Court (Eighth Chamber) delivered on 24 September 2015 in Case T-674/11 TV2/Danmark v European Commission

text:
               15.2.2016

               EN

               Official Journal of the European Union

               C 59/8

         Appeal brought on 7 December 2015 by Viasat Broadcasting UK Ltd against the judgment of the General Court (Eighth Chamber) delivered on 24 September 2015 in Case T-674/11 TV2/Danmark v European Commission
   (Case C-657/15 P)
   (2016/C 059/07)
   Language of the case: Danish

      Parties

      Appellant: Viasat Broadcasting UK Ltd (represented by: M. Honoré and S. Kalsmose-Hjelmborg, advokater)

      Other parties to the proceedings: TV2 Danmark A/S, European Commission, Kingdom of Danmark

      Forms of order sought

               —

               Set aside point 1 of the operative part of the General Court’s judgment of 24 September 2015 in Case T-674/11 TV2/Danmark v Commission (claim 1); and

               —

               Set aside that part of the General Court’s judgment of 24 September 2015 in Case T-674/11 TV2/Danmark v Commission by which the General Court upholds the third part of the applicant’s first plea in law (claim 2); and

               —

               Find in favour of the Commission with regard to the action for annulment brought by TV2 and the Kingdom of Denmark; and

               —

               Order TV2/Danmark and the Kingdom of Denmark, applicants at first instance, to pay Viasat’s costs.

      Pleas in law and main arguments

   In relation to the first form of order sought, Viasat submits that the General Court found, incorrectly, that the Commission had erred in finding that advertising revenues charged by TV2 Reklame A/S in 1995 and 1995 constituted State aid.
   Viasat further submits that the advertising revenues from 1995 and 1996 entailed a transfer of State resources, as the advertising revenues went through the company TV2 Reklame A/S and the TV2 Fund, which were both under State control. Furthermore, the actual use of the resources was decided on by the Minister for Culture (Kulturministeren) and the Parliamentary Finance Committee (Folketingets Finansudvalg). The General Court was also incorrect in holding that TV2 had a legal right to the resources in the TV2 Fund or portions thereof.
   In relation to the second plea in law, Viasat submits that the General Court erred in upholding the applicant’s submission that the second Altmark condition was met in the case (paragraphs 88-111). Viasat observes that, in its judgment, the General Court considers solely the interpretation of the contested decision which the Commission, in the General Court’s view, ought to have submitted in its written pleadings before the General Court, without examining the statement of reasons in the contested decision. There is nothing in paragraphs 114 to 116 of the contested decision showing that the second Altmark condition would include a requirement of efficiency on the part of the recipient of the compensation.
   The General Court thus ought to have ruled on whether the Commission could rightly require, in connection with the second Altmark condition, that there must not only be foreseeability with regards to TV2’s future advertising revenues (that is to say, income), but also the costs in connection with the calculation of the compensation.
   Viasat submits that the Commission’s requirement of a sufficient degree of transparency in relation to costs is a logical and necessary consequence of the broad freedom a public service provider has in the radio and television sectors: see inter alia paragraph 214 in the judgment in BUPA v Commission, T-289/03, EU:T:2008:29.
   The need for transparency surrounding costs is also relevant in relation to the other Altmark criteria: see judgment of the General Court in Viasat v Commission, T-125/12, EU:T:2015:687 paragraphs 80-83.


title: Action brought on 5 January 1998 by D'Odorico Franco against the Commission of the European Communities (Case T-3/98)

text:
7.3.98                EN                 Official Journal of the European Communities                                  C 72/23
Pleas in law and main arguments adduced in support:                 Action brought on 5 January 1998 by Birri Fiorindo
                                                                       against the Commission of the European Communities
                                                                                (Case T-4/98)
The pleas in law and main arguments are similar to those
relied upon in Case T-288/97 Regione Friuli-Venezia                                           (98/C 72/52)
Giulia v. Commission (1).
                                                                                (Language of the case: Italian)
(1) OJ C 7, 10.1.1998, p. 25.
                                                                    An action against the Commission of the European
                                                                    Communities was brought before the Court of First
                                                                    Instance of the European Communities on 5 January 1998
                                                                    by Birri Fiorindo, represented by Claudio Mussato, of the
                                                                    Udine Bar, with an address for service at his Chambers at
                                                                    4 Via Dante, Udine.
Action brought on 5 January 1998 by D'Odorico Franco
   against the Commission of the European Communities
                                                                    The applicant claims that the Court should:
                         (Case T-3/98)
                          (98/C 72/51)
                                                                    Ð annul Commission Decision C(97) 2735 final of
                                                                         30 July 1997,
                (Language of the case: Italian)
                                                                    Ð in the alternative, annul Article 5 of that Decision
                                                                         inasmuch as it requires the Member State to recover
An action against the Commission of the European                         the aid (granted as from 1 July 1990), together with
Communities was brought before the Court of First                        the interest accrued as from the date on which the aid
Instance of the European Communities on 5 January 1998                   was paid,
by D'Odorico Franco, represented by Claudio Mussato, of
the Udine Bar, with an address for service at his Chambers
at 4 Via Dante, Udine.                                              Ð in any event, order the Commission of the European
                                                                         Communities to pay the costs.
The applicant claims that the Court should:
                                                                    Pleas in law and main arguments adduced in support:
Ð annul Commission Decision C(97) 2735 final of                     The pleas in law and main arguments are similar to those
     30 July 1997,                                                  relied upon in Case T-288/97 Regione Friuli-Venezia
                                                                    Giulia v. Commission (1).
Ð in the alternative, annul Article 5 of that Decision              (1) OJ C 7, 10.1.1998, p. 25.
     inasmuch as it requires the Member State to recover
     the aid (granted as from 1 July 1990), together with
     the interest accrued as from the date on which the aid
     was paid,
Ð in any event, order the Commission of the European                Action brought on 5 January 1998 by Framalicco Maria
     Communities to pay the costs.                                  Cecilia against the Commission of the European
                                                                                Communities
                                                                                (Case T-5/98)
Pleas in law and main arguments adduced in support:
                                                                                (98/C 72/53)
The pleas in law and main arguments are similar to those                            (Language of the case: Italian)
relied upon in Case T-288/97 Regione Friuli-Venezia
Giulia v. Commission (1).
                                                                    An action against the Commission of the European
                                                                    Communities was brought before the Court of First
(1) OJ C 7, 10.1.1998, p. 25.                                       Instance of the European Communities on 5 January 1998
                                                                    by Framalicco Maria Cecilia, represented by Claudio
                                                                    Mussato, of the Udine Bar, with an address for service at
                                                                    4 Via Dante, Udine.


title: Opinion 2/13: Request for an opinion submitted by the European Commission pursuant to Article 218(11) TFEU

text:
               7.9.2013

               EN

               Official Journal of the European Union

               C 260/19

         Request for an opinion submitted by the European Commission pursuant to Article 218(11) TFEU
   (Opinion 2/13)
   2013/C 260/32
   Language of the case: all the official languages

      Applicant

   European Commission (represented by: H. Krämer, L. Romero Requena, C. Ladenburger and B. Smulders, Agents)

      Question submitted to the Court

   Is the Draft Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms compatible with the Treaties?


title: Case C-589/12: Reference for a preliminary ruling from Upper Tribunal (Tax and Chancery Chamber) (United Kingdom) made on 14 December 2012 — The Commissioners for Her Majesty's Revenue & Customs v GMAC UK PLC

text:
               9.3.2013

               EN

               Official Journal of the European Union

               C 71/7

         Reference for a preliminary ruling from Upper Tribunal (Tax and Chancery Chamber) (United Kingdom) made on 14 December 2012 — The Commissioners for Her Majesty's Revenue & Customs v GMAC UK PLC
   (Case C-589/12)
   2013/C 71/12
   Language of the case: English

      Referring court

   Upper Tribunal (Tax and Chancery Chamber)

      Parties to the main proceedings

      Applicant: The Commissioners for Her Majesty's Revenue & Customs

      Defendant: GMAC UK PLC

      Questions referred

               1.

               To what extent is a taxable person, in relation to two transactions concerning the same goods, entitled both (i) to invoke the direct effect of one provision of EC Council Directive 77/388 (1) (‘the Sixth VAT Directive’) in respect of one transaction and (ii) to rely on the provisions of national law in relation to the other transaction, when to do so would produce an overall fiscal result in relation to the two transactions which neither national law nor the Sixth VAT Directive applied separately to those two transactions produces or is intended to produce?

               2.

               If the answer to Question 1 is that there are circumstances in which the taxable person would not be entitled to do so (or would not be entitled to do so to a particular extent), what are the circumstances in which this would be so and in particular what is the relationship between the two transactions which would give rise to such circumstances?

               3.

               Do the answers to Questions 1 and 2 differ according to whether or not the national treatment of one transaction is in conformity with the Sixth VAT Directive?

      (1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment OJ L 145, p. 1


title: Case C-291/11: Judgment of the Court (Third Chamber) of 12 July 2012 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Staatssecretaris van Financiën v TNT Freight Management (Amsterdam) BV (Common Customs Tariff — Combined Nomenclature — Tariff headings 3002 and 3502 — Blood albumin prepared for therapeutic or prophylactic uses — Processing of the product)

text:
               22.9.2012

               EN

               Official Journal of the European Union

               C 287/15

         Judgment of the Court (Third Chamber) of 12 July 2012 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Staatssecretaris van Financiën v TNT Freight Management (Amsterdam) BV
   (Case C-291/11) (1)

   (Common Customs Tariff - Combined Nomenclature - Tariff headings 3002 and 3502 - Blood albumin prepared for therapeutic or prophylactic uses - Processing of the product)
   2012/C 287/25
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Applicant: Staatssecretaris van Financiën

      Defendant: TNT Freight Management (Amsterdam) BV

      Re:

   Reference for a preliminary ruling — Hoge Raad der Nederlanden — Combined Nomenclature — Tariff headings — Interpretation — Blood albumin prepared for therapeutic or prophylactic uses — Notion — Blood albumin which has no therapeutic effect but which is essential for, and is used exclusively for, the preparation of products which themselves do have therapeutic or prophylactic effects

      Operative part of the judgment

   Note 1(g) of Chapter 30 of the Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 1789/2003 of 11 September 2003, read in conjunction with Note 1(b) of Chapter 35 thereof, must be interpreted as meaning that a blood albumin which does not itself have a therapeutic or prophylactic effect, but which was produced for the preparation of products having a prophylactic or therapeutic effect, which is essential to that preparation, and which, by its nature, may only be used for that purpose, was prepared for therapeutic or prophylactic use within the meaning of that note.

      (1)  OJ C 252, 27.8.2011.


title: Action brought on 10 February 1997 by the Commission of the European Communities against the French Republic (Case C-57/97)

text:
No C 108/ 12          EN                    Official Journal of the European Communities                                      5 . 4 . 97
Court of First Instance of the European Communities in                 The applicant claims that the Court should :
Case T-3 80/94 between Association Internationale des Uti
lisateurs de Fils de Filaments Artificiels et Synthetiques et
de Soie Naturelle (Aiuffass ) and Apparel, Knitting &                  1 . declare that, by failing to bring into force within the
Textiles Alliance (AKT), on the one hand, and                                 prescribed period the laws, regulations or
Commission of the European Communities, supported by                          administrative provisions comprising any penalties
the United Kingdom of Great Britain and Northern                              necessary to comply with Council Directive 93/119/
Ireland, on the other, was brought before the Court of                        EC (') of 22 December 1993 on the protection of
Justice of the European Communities on 10 February                            animals at the time of slaughter or killing, the French
1997 by Association Internationale des Utilisateurs de Fils                   Republic has failed to fulfil its obligations under
de Filaments Artificiels et Synthetiques et de Soie Naturelle                 Article 18 of Directive 93/119/EC and the EC Treaty;
( Aiuffass ) and Apparel, Knitting & Textiles Alliance
( AKT), represented by M. Waelbroeck, J. Stuyck and O.
                                                                       2 . order the French Republic to pay the costs .
Speltdoorn, of the Brussels Bar, with an address for service
in Luxembourg at the Chambers of E. Arendt, 8—10 Rue
Mathias Hardt .
                                                                       Pleas in law and main arguments adduced in support:
The appellant claims that:
                                                                       The mandatory nature of the provisions of the third
                                                                       paragraph of Article 189 and the first paragraph of
— the judgment of the Fifth Chamber, Extended                          Article 5 of the EC Treaty requires Member States to
      Composition, of the Court of First Instance of                   adopt the measures necessary to transpose directives
      12 December 1996 in Case T-3 80/94 should be set                 addressed to them into their domestic law before the
      aside,                                                           expiry of the period prescribed for doing so. That period
                                                                       expired on 1 January 1995 without the French Republic
— consequently, the Commission Decision of 31 May                      having brought into force the necessary provisions .
       1994, reproduced in Commission Notice 94/C 271/06,
      authorizing the Government of the United Kingdom                 (') OJ No L 340, 31 . 12 . 1993 , p . 21 .
      under Article 92 ( 3 ) ( a ) and (c ) of the EC Treaty to
      grant aid of £ 61 million in favour of Hualon
       Corporation for the setting up of a textile producing
       plant in Northern Ireland should be annulled,
 — the Commission should be ordered to pay the costs of
       the appeal proceedings and of the proceedings before            Action brought on 10 February 1997 by the Commission
       the Court of First Instance in Case T-380/94 .                   of the European Communities against the French Republic
                                                                                Case C-57/97)
 Pleas in law and main arguments adduced in support:                                               97/C 108/22 )
 The appellants maintain that the Commission failed to
  take account of the effects of the investment at issue in the         An action against the French Republic was brought before
  high-range product sector. They consider that, in assessing           the Court of Justice of the European Communities on
  that aspect of the application, the contested judgment                10 February 1997 by the Commission of the European
  misinterpreted the Commission Decision and failed to                  Communities, represented by A. X. Lewis, acting as
  respond sufficiently to their arguments .                             Agent, with an address for service in Luxembourg at the
                                                                        office of Carlos Gomez de la Cruz, Wagner Centre,
                                                                        Kirchberg.
                                                                        The applicant claims that the Court should:
  Action brought on 10 February 1997 by the Commission
   of the European Communities against the French Republic               ( a ) declare that, by failing to bring into force within the
                           Case C-56/97)                                       prescribed period the laws, regulations or
                                                                               administrative provisions necessary to comply with:
                           ( 97/C 108/21 )
                                                                               1 . Council Directive 93/53/EEC ( 1 ) of 24 June 1993
   An action against the French Republic was brought before                        introducing minimum Community measures for
   the Court of Justice of the European Communities on                             the control of certain fish diseases;
   10 February 1997 by the Commission of the European
   Communities, represented by A. X. Lewis, acting as                          2 . Council Directive 93/113/EC (2 ) of 14 December
   Agent, with an address for service in Luxembourg at the                          1993 concerning the use and marketing of
   office of Carlos Gomez de la Cruz, Wagner Centre,                                enzymes, micro-organisms and their preparations
   Kirchberg.                                                                       in animal nutrition;
 ---pagebreak--- 5 . 4 . 97                EN                     Official Journal of the European Communities                                   No C 108/ 13
       3 . Council , Directive 93/114/EC ( 3 ) of 14 December               Member States are required to observe the time-limits laid
           1993      amending            Directive    70/524/EEC (4)        down in directives for their transposition . That time-limit
           concerning additives in feedingstuffs,                           expired on 13 September 1994 without the Italian
                                                                            Republic having brought into force the necessary
       and/or by failing to notify the Commission thereof, the              provisions in order to comply with the Directive referred
       French Republic has failed to fulfil its obligations                 to in the Commission's application.
       under Article 20 of Directive 93/53/EEC, Article 8 of
       Directive 93/ 113/EC and Article 2 of Directive 93/114/              H OJ No L 247, 5 . 10 . 1993 , p. 19 .
       EC and of the EC Treaty;
( b) order the French Republic to pay the costs.
Pleas in law and main arguments adduced in support:
                                                                            Appeal brought on 11 February 1997 by L. B. Rasmussen
                                                                            against the judgment delivered on 12 December 1996 by
The pleas in law and main arguments are similar to those                    the Third Chamber of the Court of First Instance of the
relied on in Case C-56/97 (s ); the time-limits expired on
                                                                            European Communities in Case T-130/95 between L. B.
1 January 1994 (Directive 93/53/EEC ), 1 October 1994
(Directive 93/113/EC and Directive 93/114/EC) and                           Rasmussen and the Commission of the European
                                                                                Communities
1 January 1995 (Article 7 of Directive 93/113/EC )
respectively.                                                                                ( Case C-60/97 P)
                                                                                ( 97/C 108/24 )
(1 )  OJ  No L 175 , 19 . 7 . 1993 , p . 23 .
(2 )  OJ  No L 334,  31 . 12 . 1993 , p. 17.
(3)   OJ  No L 334,  31 . 12 . 1993 , p . 24 .                              An appeal against the judgment delivered on 12 December
(4)   OJ  No L 270,  14 . 12 . 1970, p . 1 .                                 1996 by the Third Chamber of the Court of First Instance
(5 ) See page 12 of this Official Journal.                                  of the European Communities in Case T-130/95 between
                                                                            L. B. Rasmussen and the Commission of the European
                                                                             Communities was brought before the Court of Justice of
                                                                            the European Communities on 11 February 1997 by L. B.
                                                                             Rasmussen, represented by Carlo Revoldini, with an
                                                                             address for service in Luxembourg at 180, route de
Action brought on 7 February 1997 by the Commission of                       Longwy.
     the European Communities against the Italian Republic
                              ( Case C-58/97 )                               The appellant claims that the Court should:
                                ( 97/C 108/23 )
                                                                             — quash the judgment appealed against in its entirety,
                                                                                except as to the costs of the proceedings,
 An action against the Italian Republic was brought before
 the Court of Justice of the European Communities on                         and as should have been held at first instance :
 7 February 1997 by the Commission of the European
 Communities, represented by Frank Benyon, Legal                             — annul the decision of the Commission not to promote
 Adviser, and Laura Pignataro, of its Legal Service, acting                      the applicant to Grade A 4 in the 1994 promotion
 as Agents, with an address for service in Luxembourg at                         procedure,
 the office of Carlos Gomez de la Cruz, Wagner Centre,
 Kirchberg.                                                                  — annul the decision of the Commission to promote to
                                                                                Grade A 4 the officials on the list published in
 The applicant claims that the Court should :                                    Administrative     Information        Bulletin No   859   of
                                                                                8 September 1994,
  1 . declare that, by failing to adopt and/or notify the
        laws, regulations or administrative provisions                       — order the Commission to pay damages in respect of
        necessary to comply with Council Directive 93/75/EEC                      the non-material harm suffered,
        of 13 September 1993 concerning minimum
        requirements for vessels bound for or leaving                        — order the Commission to pay the costs of the
        Community ports and carrying dangerous or polluting                       proceedings in any event.
        goods ('), the Italian Republic has failed to fulfil its
        obligations under that Directive and the EC Treaty;                   Pleas in law and main arguments adduced in support:
  2 . order the Italian Republic to pay the costs .                           Defective and inadequate reasoning of the contested
                                                                              judgment which failed to deal with the applicant's
  Pleas in law and main arguments adduced in support:                         arguments and claims (] ).
  Under Article 189 of the EC Treaty, according to which a                    H OJ No C 208 , 17 . 8 . 1995 , p . 35 .
  directive is to be binding, as to the result to be achieved,
  upon each Member State to which it is addressed,


title: Case T-120/05: Action brought on 8 March 2005 by Andreas Knaul and Others against the Commission of the European Communities

text:
               14.5.2005

               EN

               Official Journal of the European Union

               C 115/36

         Action brought on 8 March 2005 by Andreas Knaul and Others against the Commission of the European Communities
   (Case T-120/05)
   (2005/C 115/64)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 8 March 2005 by Knaul Andreas, residing in Riga (Latvia), Márquez Camacho Antonio, residing in Brussels, Reina Cantalejo María Teresa, residing in Brussels and Tejada Fernández Miguel, residing in Zaventem (Belgium), represented by S. Rodrigues and A. Jaume, lawyers, with an address for service in Luxembourg.
   The applicants claim that the Court should:

               1.

               annul the Appointing Authority's decisions rejecting the applicants' complaints, taken together with the Appointing Authority's decisions of 1 May 2004 changing the applicants' grades to Grade A*8 or B*8;

               2.

               annul the applicants' pay slips implementing the Appointing Authority's decision to change the applicants' grades to Grade A*8 or B*8 from 1 May 2004;

               3.

               invite the Commission to recognise the applicants as being eligible for promotion to Grade A*10 and B*10 on their next promotion;

               4.

               order the Commission to make good the loss suffered by the applicants as a result of their not having been placed in Grade A*9 or B*9 from 1 May 2004;

               5.

               order the defendant to pay all the costs.

         Pleas in law and main arguments
   The pleas in law and main arguments are those relied upon in case T-114/05 Joerg Peter Block and Others v Commission.


title: Case C-198/07 P: Appeal brought on 12 April 2007 by Donal Gordon against the judgment of the Court of First Instance (Third Chamber) delivered on 7 February 2007 in Case T-175/04: Donal Gordon v Commission of the European Communities

text:
               9.6.2007

               EN

               Official Journal of the European Union

               C 129/12

         Appeal brought on 12 April 2007 by Donal Gordon against the judgment of the Court of First Instance (Third Chamber) delivered on 7 February 2007 in Case T-175/04: Donal Gordon v Commission of the European Communities
   (Case C-198/07 P)
   (2007/C 129/21)
   Language of the case: English
   Parties

      Appellant: Donal Gordon (represented by: J. Sambon, P.-P. Van Gehuchten, and Ph. Reyniers, avocats)

      Other party to the proceedings: Commission of the European Communities
   Form of order sought

               —

               to annul the Judgment in Case T-175/04 and to make a ruling on the substance of this case

               —

               to confirm the appellant's intrinsic interest in his CDR independent of the administration's interest therein;

               —

               to recognise that invalidity is by definition reversible, and is so regarded and so treated by the Commission's Medical Service;

               —

               to accord the appellant the right to judicial protection in respect of his CDR;

               —

               to allow the claim to damages and to award the appellant €1.5 million in compensation;

               —

               to make an appropriate award as to costs.

         Pleas in law and main arguments
   The appellant submits that the judgment of the Court of First Instance is based on false and/or arbitrary premises in that it:

               —

               Denies the appellant's autonomous interest in his career development report;

               —

               Misrepresents the legislation on invalidity and the application thereof;

               —

               Denies the appellant judicial protection despite the unresolved issue of whether his invalidity is occupational or not;

               —

               Makes a ruling on damages in disregard of the evolving realities of the appellant's situation.


title: Case C-167/00: Reference for a preliminary ruling, by order of the Oberster Gerichtshof (Austria) of 13 April 2000 in the case of Verein für Konsumenteninformation v Karl Heinz Henkel

text:
8.7.2000               EN                     Official Journal of the European Communities                                       C 192/11
Action brought on 8 May 2000 by the Commission of the                    Under the first paragraph of Article 10 of the Treaty, the
  European Communities against the Hellenic Republic                     Member States are to take all appropriate measures, whether
                                                                         general or particular, to ensure fulfilment of the obligations
                                                                         arising out of the Treaty or resulting from action taken by the
                         (Case C-166/00)                                 institutions of the Community.
                         (2000/C 192/18)                                 It is clear that the Hellenic Republic is required to take
                                                                         measures to comply with the above directives.
An action against the Hellenic Republic was brought before
the Court of Justice on 8 May 2000 by the Commission of                  The Commission notes that the Hellenic Republic has not yet
the European Communities, represented by Maria Kondou-                   taken the appropriate measures to transpose the directives in
Durande, of its Legal Service, with an address for service in            question fully into the Greek legal system.
Luxembourg at the office of Carlos Gómez de la Cruz, also of
the Commission’s Legal Service, Wagner Centre, Kirchberg.
                                                                         ( 1) OJ L 184 of 25.6.1997, p. 33.
                                                                         ( 2) OJ L 19 of 16.1.1998, p. 25.
The Commission of the European Communities asks the Court                ( 3) OJ L 208 of 24.7.1998, p. 43.
                                                                         ( 4) OJ L 261 of 24.9.1999, p. 10.
a) to declare that, by failing to adopt within the period
    prescribed the laws, regulations and administrative pro-
    visions necessary to comply with
    — Council Directive 97/41/EC of 25 June 1997 (1)
         amending Directives 76/895/EEC, 86/362/EEC,
         86/363/EEC and 90/642/EEC relating to the fixing of
         maximum levels for pesticide residues in and on,
         respectively, fruit and vegetables, cereals, foodstuffs of      Reference for a preliminary ruling, by order of the
         animal origin, and certain products of plant origin,            Oberster Gerichtshof (Austria) of 13 April 2000 in the
         including fruit and vegetables;                                 case of Verein für Konsumenteninformation v Karl Heinz
                                                                                Henkel
    — Council Directive 97/76/EC of 16 December 1997 (2)
         amending Directive 77/99/EEC and Directive                                               (Case C-167/00)
         72/462/EEC with regard to the rules applicable to
         minced meat, meat preparations and certain other
         products of animal origin;                                                               (2000/C 192/19)
    — Commission Directive 98/51/EC of 9 July 1998 (3)                   Reference has been made to the Court of Justice of the
         laying down certain measures for implementing                   European Communities by order of the Oberster Gerichtshof
         Council Directive 95/69/EC laying down the con-                 (Supreme Court) (Austria) of 13 April 2000, which was
         ditions and arrangements for approving and registering          received at the Court Registry on 8 May 2000, for a preliminary
         certain establishments and intermediaries operating in          ruling in the case of Verein für Konsumenteninformation v
         the animal feed sector;                                         Karl Heinz Henkel on the following question:
    — Commission Directive 98/67/EC of 7 September                       Does the right to obtain an injunction to prohibit the use of
         1998 (4)      amending      Directives       80/511/EEC,        unlawful or unconscionable general terms and conditions
         82/475/EEC, 91/357/EEC and Council Directive                    provided for in Paragraph 28 of the Austrian Konsumenten-
         96/25/EC and repealing Directive 92/87/EEC                      schutzgesetz (Law on Customer Protection, ‘KSchG’), BGBl
                                                                         1979/140, which is asserted by a consumer protection organis-
    within the periods prescribed in those directives, the               ation pursuant to Paragraph 29 of the KSchG and in accord-
    Hellenic Republic has failed to fulfil its obligations under         ance with Article 7(2) of Council Directive of 5 April 1993 on
    the Treaty and those directives.                                     unfair terms in consumer contracts (93/13/EEC (1)), constitute
                                                                         a claim arising out of matters relating to tort, delict or quasi-
b) order the Hellenic Republic to pay the costs.                         delict which may be asserted in courts with the special
                                                                         jurisdiction provided for in Article 5(3) of the Brussels Conven-
                                                                         tion on Jurisdiction and the Enforcement of Judgments in Civil
                                                                         and Commercial Matters of 27 September 1968?
Pleas in law and main arguments
Under the third paragraph of Article 249 of the Treaty                   (1) OJ L 95 of 21.4.1993, p. 29.
establishing the European Community, a directive is to be
binding, as to the result to be achieved, upon each Member
State to which it is addressed.


title: Case T-233/02: Action brought on 2 August 2002 by Kharis Alexandratos and Maria Panagiotou against the Council of the European Union

text:
28.9.2002              EN                      Official Journal of the European Communities                                       C 233/33
Pleas in law and main arguments                                           Communities on 2 August 2002 by Kharis Alexandratos
                                                                          and Maria Panagiotou, resident in Brussels, represented by
                                                                          K. Tagaras, Lawyer, with an address for service in Luxembourg.
The applicants, being the President of AIFO (Associazione
Italiana Frantoiani Oleari) and that association itself, seek
annulment of Commission Regulation (EC) No 1019/2002 of                   The applicants claim that the Court should:
13 June 2002 on marketing standards for olive oil ( 1).
                                                                          —     allow the application;
In support of their claims, they plead infringement of
Article 33, the second subparagraph of Article 34(2) and                  —     annul the contested measures so that the defendant is
Articles 153, 157 and 253 of the EC Treaty. They maintain                       obliged to allow the applicants to sit the oral tests;
in that regard that the contested regulation favours the
maintenance of the dominant positions occupied by large                   —     order the defendant to pay the costs.
undertakings in the sector concerned, thereby impeding the
development of small and medium-sized undertakings, and
that it does not provide consumers with guarantees as to the
provenance and authenticity of the product. In particular, the            Pleas in law and main arguments
regulation provides that the labelling is to bear information on
the category of olive oil concerned, but that information is
inadequate to guarantee the intrinsic quality of the product.             This is an action challenging the decision of the selection
More specifically, it provides that the designation of origin of          board for Council Open Competition A/393 to award the
virgin and extra virgin olive oils is to be purely optional,              applicants a fail mark in one of the written tests and not to
whereas, for consumers, the geographical origin of the raw                allow them to sit the oral tests.
materials is invariably a point of major importance. The
regulation requires the product to be presented to the final
consumer in packaging of a maximum capacity of five litres,               The applicants plead infringement of the first paragraph of
to the prejudice of small operators such as pressers, who                 Article 27 of the Staff Regulations and of the principle of equal
generally sell the product in bulk on the spot.                           treatment. They contend that the infringement is aggravated
                                                                          by the defendant’s refusal to grant requests made by them
                                                                          seeking information concerning the guidelines and criteria for
Moreover, the contested regulation does not provide adequate
                                                                          marking their papers and comparing them with those of the
guarantees as to the provenance and authenticity of the
product, thus impeding the marketing of types of oil which                successful candidates.
are of higher quality and are more susceptible to direct control
by the consumer, such as that sold directly by the presser.               Furthermore, in the applicants’ submission that refusal renders
                                                                          the contested measures liable to annulment also by reason of
From another standpoint, and contrary to the objective of                 breach of the duty to state reasons for measures adversely
the common agricultural policy, the contested regulation                  affecting them and of the principle of transparency in conjunc-
discourages the distribution of high-quality olive oil such as            tion with Article 255 EC concerning access to documents.
that marketed directly by pressers, and acts as a disincentive
to productivity, technical progress and rational agricultural
development.
( 1) OJ L 155 of 14.6.2002, p. 27.
                                                                          Action brought on 5 August 2002 by Strongline A/S
                                                                          against the Office for Harmonisation in the Internal
                                                                                Market
Action brought on 2 August 2002 by Kharis Alexandratos                                            (Case T-235/02)
and Maria Panagiotou against the Council of the European
                               Union
                                                                                (2002/C 233/59)
                         (Case T-233/02)
                                                                                (Language of the case: English)
                         (2002/C 233/58)
                    (Language of the Case: Greek)
                                                                          An action against the Office for Harmonisation in the Internal
                                                                          Market was brought before the Court of First Instance of the
                                                                          European Communities on 5 August 2002 by Strongline A/S,
An action against the Council of the European Union was                   represented by Mr Jacob S. Ørndrup at Gorrissen, Federspiel,
brought before the Court of First Instance of the European                Kierkegaard in Copenhagen, Denmark.


title: Case C-63/03: Action brought on 14 February 2003 by the Commission of the European Communities against the Kingdom of the Netherlands

text:
5.4.2003                EN                         Official Journal of the European Union                                          C 83/13
Does national legislation (Decree-Law No 324 of 10 September               Action brought on 14 February 2003 by the Commission
1998, unconverted, and Article 43(7) of Law No 448 of                      of the European Communities against the Kingdom of
23 December 1998) which, by setting aside the ordinary law                                              Belgium
that permits continuation of the employment relationship,
allows an undertaking (Ferrovie dello Stato SpA) to dismiss its
older employees — thereby creating a situation in which the
undertaking can save on labour costs (salaries and insurance                                        (Case C-65/03)
obligations), with an immediate resulting burden to the State
in the form of reduced contribution revenue and the payment
of pensions to dismissed workers — fall within the concept of
                                                                                (2003/C 83/23)
aid that is incompatible with the common market within the
meaning of Article 87 of the Treaty?
                                                                           An action against the Kingdom of Belgium was brought
                                                                           before the Court of Justice of the European Communities on
                                                                           14 February 2003 by the Commission of the European
Action brought on 14 February 2003 by the Commission                       Communities, represented by D. Martin, acting as Agent, with
of the European Communities against the Kingdom of the                     an address for service in Luxembourg.
                             Netherlands
                           (Case C-63/03)
                                                                           The applicant claims that the Court should:
                           (2003/C 83/22)
                                                                           —     declare that, by not adopting the measures necessary to
                                                                                ensure that holders of secondary education qualifications
                                                                                obtained in the other Member States may be admitted
An action against the Kingdom of the Netherlands was brought                     to higher education organised by the Belgian French-
before the Court of Justice of the European Communities on                       speaking Community on the same terms as holders of
14 February 2003 by the Commission of the European                               the CESS (certificat d’enseignement secondaire supérieur),
Communities, represented by W. Wils, acting as Agent.                            the Kingdom of Belgium has failed to fulfil its obligations
                                                                                under Articles 12, 149 and 150 EC.
The applicant claims that the Court should:
                                                                           —     order the Kingdom of Belgium to pay the costs.
1.     Declare that, by failing to bring into force the laws,
       regulations and administrative provisions necessary to
       comply with Directive 98/71/EC ( 1) of the European
       Parliament and of the Council of 13 October 1998 on
       the legal protection of designs, or in any event by failing
       to forward those provisions to the Commission, the                  Pleas in law and main arguments
       Kingdom of the Netherlands has failed to fulfil its
       obligations under that directive;
2.     Order the Kingdom of the Netherlands to pay the costs.              The Belgian authorities in question require holders of diplomas
                                                                           and qualifications attesting to the completion of secondary
                                                                           studies in other Member States (with the exception of the
                                                                           Grand-Duchy of Luxembourg), who are nationals of other
Pleas in law and main arguments                                            Member States and who wish to be admitted to higher
                                                                           education in Belgium, to sit and pass an aptitude test unless,
                                                                           by way of an additional requirement, they are able to
The period within which the directive had to be transposed                 demonstrate that they have been granted admission in their
expired on 28 October 2001.                                                country of origin to the desired university faculty without an
                                                                           entrance examination or other form of restriction of admission.
                                                                           The Commission considers that this practice is discriminatory
( 1) Directive 98/71/EC of the European Parliament and of the Council      and contrary to the articles cited in the above claims.
     of 13 October 1998 on the legal protection of designs (OJ 1998
     L 289, p. 28).


title: Case T-467/09: Action brought on 19 November 2009 — Stelzer v Commission

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/60

         Action brought on 19 November 2009 — Stelzer v Commission
   (Case T-467/09)
   2010/C 24/107
   Language of the case: German

      Parties

      Applicant: Dierk Stelzer (Berlin, Germany) (represented by: F. Weiland, lawyer)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               annul the decisions in the form of refusals by the Directorate-General Environment of the Commission of 6 August 2009 and the Secretariat-General of the Commission of 29 October 2009 (correct date must be 29 September 2009);

               —

               order the defendant to pay the applicant’s costs incurred out of court.

      Pleas in law and main arguments

   The applicant contests in particular the Commission decision dated 29 October 2009, by which his second application for inspection of the compliance study on the transposition of Directive 2003/35/EC (1) was partially rejected.
   In support of its action the applicant claims that the reasons invoked by the defendant for the rejection of access to the document applied for, based on protection of the purpose of investigations (Article 4(2), third indent, of Regulation [EC] No 1049/2001 (2)) and on protection of the decision-making process (Article 4(3) of Regulation No 1049/2001) were erroneous. The applicant also claims that the request for partial access to the document applied for under Article 4(6) of Regulation No 1049/2001 was wrongly rejected. Furthermore there is an overwhelming public interest in the dissemination of the study in question. Finally the applicant complains that the defendant failed to comply with the obligation to state reasons.

      (1)  Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (OJ 2003 L 156, p. 17).

      (2)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).