title: Reference for a preliminary ruling from the Hoge Raad der Nederlanden by judgment of that court of 20 October 1995 in the Case of 1. Parfums Christian Dior SA, 2. Parfums Christian Dior BV v. Evora BV (Case C-337/95)

text:
30 . 12 . 95             EN                    Official Journal of the European Communities                                      No C 351 /3
Reference for a preliminary ruling from the Cour du Travail,              Garanti'a Salarial on the basis that the full length of service is
Liege ( Second Chamber ) by judgment of that court of                     not taken into account but that some of the periods of
10 October 1995             in the case of Institut National              employment are excluded, notwithstanding the fact that
d'Assurances Sociales pour Travailleurs Independants                      work was performed uninterruptedly for an undertaking
                     (Inasti ) v. Michel Picard                           which was transferred, without infringing Article 1(1 ) and
                          ( Case C-335 /95 )                              the second subparagraph of Article 3 ( 3 ) of Council
                                                                          Directive 77/ 187/EEC ?
                             ( 95/C 351 /05 )
Reference has been made to the Court of Justice of the
European Communities by a judgment of the Cour du
Travail ( Higher Labour Court), Liege ( Second Chamber ) of
10 October 1995 , which was received at the Court Registry
on 23 October 1995 , for a preliminary ruling in the case of              Reference for a preliminary ruling from the Hoge Raad der
Institut National d'Assurances Sociales pour Travailleurs                 Nederlanden by judgment of that court of 20 October 1995
Independants ( Inasti ) v. Michel Picard on the following                 in the Case of 1 . Parfums Christian Dior SA, 2 . Parfums
questions :                                                                                Christian Dior BV v. Evora BY
                                                                                ( Case C-337/95 )
1 . Does Article 36 ( 4 ) of Council Regulation ( EEC )                                              ( 95/C 351 /07 )
     No 574/72 (') laying down the procedure for
     implementing Regulation ( EEC ) No 1408/71 on the
     application of social security schemes to employed                   Reference has been made to the Court of Justice of the
     persons, to self-employed persons and to members of                  European Communities by a judgment of the Hoge Raad
     their families moving within the Community lay down a                der Nederlanden ( Supreme Court of the Netherlands ) of
     general independent rule which applies irrespective of               20 October 1995 , which was received at the Court Registry
     compliance with the provisions of Article 36 (1 ), ( 2 ) and         on 26 October 1995 , for a preliminary ruling in the case of
     ( 3 )?
                                                                          1 . Parfums Christian Dior SA, established in Paris,
                                                                          2 . Parfums Christian Dior BV, established at Rotterdam, v.
                                                                          Evora BV on the following questions :
2 . If the reply to the first question is in the negative , must an
     employed or a self-employed person who cannot,
     without prior recognition of entitlement to a pension by             ( a ) where, in proceedings relating to trade marks in one of
                                                                                the    Benelux   countries    in   connection     with    the
     the competent institution of another Member State ( in
     the present case , the Member State of which he is a                        interpretation of the Uniform Benelux Law on Trade
     national ), obtain the recognition of entitlement to a                      Marks, a question relating to the interpretation of the
     pension by the competent institution of his State of                        First Council Directive 89/ 104/EEC ( ] ) of 21 December
     residence , nevertheless submit a claim in the State of                     1988 to approximate the laws of the Member States
     residence    in    order      for  benefits  to   be  awarded               relating to trade marks arises, is the highest national
     concurrently in both States ?                                               court or the Benelux Court to be regarded as the court
                                                                                or tribunal of the Member State against whose
                                                                                decisions there is no remedy under national law and
(') O J No L 74 , p . 1 .
                                                                                which is therefore obliged under the third paragraph of
                                                                                Article 1 77 of the EC Treaty to make a reference to the
                                                                                Court of Justice ?
                                                                           ( b ) Is it in keeping with the system of the aforementioned
                                                                                Directive , in particular Articles 5 , 6 and 7 thereof, to
Reference for a preliminary ruling by the Juzgado de lo                          assume that, where it is a question of the resale of goods
Social No 16 by order of that court of 1 September 1995 in                       which have been put on the market in the Community
the case of Pedro Burdalo and Others against Fondo de                            under a trade mark by the trade mark proprietor or
                           Garantia Salarial
                                                                                with his consent, the reseller is also free to use that trade
                             Case C-336/95 )                                     mark for the purposes of bringing such further
                              ( 95/C 351 /06 )                                   commercialization to the attention of the public ?
Reference has been made to the Court of Justice of the                     (c ) In the event that question ( b ) is answered in the
 European Communities by order of the Juzgado de lo Social                       affirmative, do exceptions exist to that rule ?
 ( Social Court ) No 16 of 1 September 1995 , which was
 received at the Court Registry on 26 October 1995 , for a                 ( d ) In the event that question ( c ) is answered in the
 preliminary ruling in the case of Pedro Burdalo and Others                      affirmative, is there room for an exception where the
 against Fondo de Garanti'a Salarial on the following                             advertising function of the trade mark is endangered by
 question :                                                                      the fact that, as a result of the manner in which the
                                                                                reseller uses the trade mark in order to attract public
 may the legislation or the case-law of a Member State reduce                     attention in that way, he damages the luxurious and
 the benefits which must be awarded by the Fondo de                               prestigious image of the trade mark ?
 ---pagebreak--- No C 351 /4                EN                  Official Journal of the European Communities                                        30 . 12 . 95
( e ) Can there said to be 'legitimate reasons' within the                       carrying the goods on the ocean leg — also to carry the
       meaning of Article 7 ( 2 ) of the Directive where , as a                  goods from the shipper's premises in western Europe to
       result of the way in which the reseller advertises the                    the port of shipment in western Europe ('inland
       goods, the 'mental condition ' of the goods — that is to                  haulage '), and
        say, their allure, prestigious image and aura of luxury
        resulting from the manner in which the trade mark                 — the lines conclude an agreement between themselves
        proprietor has chosen to present and advertise the                       pursuant to which they undertake to adhere to an agreed
        goods using his trade mark rights — is altered or                        tariff and pricing policy for such multi-modal services,
        detracted from ?                                                         and
( f) Do the provisions of Articles 30 and 36 of the EC                    — the agreed tariff and pricing policy covers all the
        Treaty preclude the proprietor of a (picture ) trade mark                elements of the charges made for multi-modal services
        or a holder of copyright relating to the bottles and                     offered by the lines , including not only the ocean leg but
        packaging used for his goods from making it                              also the inland haulage and other ancillary charges
        impossible, by invoking the trade mark right or                          relating to such services ( such as stevedoring, stuffing of
        copyright, for a reseller who is free further to                         containers , demurrage and detention ),
        commercialize those goods to advertise the goods in a
        manner customary to retail traders in the relevant                is that agreement subject to the provisions of Council
        sector ? Is this the case also where the reseller , as a result
        of the manner in which he uses the trade mark in his
                                                                          Regulation ( EEC ) No 4056/86 of 22, December 1986 laying
                                                                          down detailed rules for the application of Articles 85 and 86
        advertising material, damages the luxurious and                   of the Treaty to maritime transport ( 1 ), and in particular
        prestigious image of the trade mark or the publication            Article 3 , alone, or is it also subject to the provisions of
        or reproduction take place in circumstances such that             Council Regulation ( EEC ) No 1017/68 of 19 July 1968
        damage may be done to the person entitled to the                  applying rules of competition to transport by rail, road and
        copyright ?                                                       inland waterway ( 2 ) ( in so far as it concerns inland haulage )
                                                                          and/or Council Regulation No 17 : First Regulation
 (') OJ No L 40 , p . 1 .                                                 implementing Articles 85 and 86 ( 3 ) of the Treaty ( in so far
                                                                          as it concerns other ancillary services ) ? In the latter event, to
                                                                          what aspects of the agreement do the different Regulations
                                                                          respectively apply ?
                                                                          Question 2 — ' Common or uniform rates '
 Reference for a preliminary ruling by the High Court of
Justice, Queen's Bench Division , Commercial Court, by
 order of that court of 18 January 1995 , in the case of                  2.1 .       In determining whether a group of two or more
 Compagnia di Navigazione Marittima and others against                    vesselroperating carriers constitutes a ' liner conference '
              Compagnie Maritime Beige and others                         within the meaning of Article 1 ( 3 ) ( b ) of Council Regulation
                                                                           ( EEC ) No 4056/86 , and in particular whether the carriers
                            ( Case C-339/95 )
                                                                          are parties to an agreement or arrangement, of whatever
                              ( 95/C 351 /08 )                            nature, within the framework of which they operate ( or
                                                                          purport to operate ) under 'common or uniform freight
 Reference has been made to the Court of Justice of the                    rates ':
 European Communities by an order of the High Court of
 Justice, Queen's Bench Division , Commercial Court, of                    ( a ) does the expression ' freight rates ' refer, in the case of
  1 8 January 1995 , which was received at the Court Registry                      multi-modal services, only to the component to be
 on 30 October 1995 , for a preliminary ruling in the case of                      charged for the ocean leg of the service ( where this can
 Compagnia di Navigazione Marittima and others against                             be separately ascertained ) or does it refer to the total
 Compagnie Maritime Beige and others, on the following                             charge to be made for such a service ?
 questions :
                                                                            ( b ) If the agreed tariff or pricing policy involves a single
                                                                                freight rate for a particular multi-modal service ( i.e.
  Question 1 — Applicable Regulation(s)                                            where the freight rate is not comprised of distinct
                                                                                components for the ocean leg and inland haulage ), how
  1.1      Where :                                                                 is the test of ' common or uniform trade ' to be
                                                                                applied ?
 — a number of shipping lines provide regular international
       liner services for the carriage of goods in containers by            2.2 . What is meant by the words 'common or uniform' in
       sea from various ports in western Europe to ports in the             Article 1 ( 3 ) ( b )? In particular, does the notion of 'common
       Arabian Gulf, and                                                    or uniform' cover the case where rates are not uniform ( in
                                                                            the sense that not all shippers of the same cargo are charged
  — the services offered by the lines include door-to-door                  the same rate ) but are nonetheless agreed in common ( in the
       ('multi-modal ') carriage whereby, pursuant to a single              sense that there exists elaborate procedures for reporting,
       contract of carriage between the shipper and the                     monitoring and securing agreement to special rates
       shipping line, the line undertakes — in addition to                   negotiated for or by shippers or groups of shippers, which


title: Case T-189/99: Action brought on 24 August 1999 by Ioannis Gerokhristos against the Commission of the European Communities

text:
C 333/26                  EN                     Official Journal of the European Communities                                    20.11.1999
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                 Action brought on 24 August 1999 by Ioannis Gerokhris-
                                                                            tos against the Commission of the European Communities
                       of 21 September 1999
                                                                                (Case T-189/99)
in Case T-98/98: Tania Trigari-Venturin v Translation                                               (1999/C 333/64)
         Centre for Bodies of the European Union (1)
(Probationer member of the temporary staff — Dismissal                                         (Language of the case: Greek)
for incompetence at the end of the probationary period —
Action for annulment — Correlation between grade and the
duties to be performed — Delay in transmission of social                    An action against the Commission of the European Communi-
   documentation — Action for compensation — Damage)                        ties was brought before the Court of First Instance of the
                                                                            European Communities on 24 August 1999 by Ioannis
                                                                            Gerokhristos, a political science graduate, resident at Tsimiski
                           (1999/C 333/63)                                  99, Thessaloniki, Greece, represented by Nikolaos Korogian-
                                                                            nakis, of the Athens Bar, with an address for service in
                                                                            Luxembourg at the offices of Brown Holding SA, 310 Route
                                                                            d’Esch, L-1471 Luxembourg.
                     (Language of the case: French)
                                                                            The applicant claims that the Court should:
In Case T-98/98: Tania Trigari-Venturin, a former member of
the temporary staff of the Translation Centre for Bodies of                 — find that his application is well founded in law and on the
the European Union, residing at Sandweiler (Luxembourg),                        merits;
represented by Jean-Noël Louis and Françoise Parmentier, of
the Brussels Bar, with an address for service in Luxembourg at
the offices of Fiduciaire Myson SARL, 30 Rue de Cessange, v                 — annul:
Translation Centre for Bodies of the European Union (Agents:
Nadia Lamboray and Denis Waelbroeck) — application, first,
                                                                                — Decision 21.06.99/IX.A2./023 rejecting the applicant’s
for annulment of the decision of the Translation Centre for                         request that his script be re-examined in order for him
Bodies of the European Union of 9 October 1997 dismissing                           to be included in the list of successful candidates at
the applicant with effect from 31 October 1997 and, second,
                                                                                that stage and to participate in the written tests;
for compensation for the material and non-material damage
which that dismissal has caused to the applicant — the Court
of First Instance (Third Chamber), composed of: M. Jaeger,                      — Decision IX.A.2 D(98)/500R-EL 501502 of 30 April
President, and K. Lenaerts and J. Azizi, Judges; A. Mair, Admin-                    1999 excluding the applicant from the written tests,
istrator, for the Registrar, has given a judgment on 21 Septem-                     and every administrative, procedural or implementing
ber 1999, in which it:                                                              act of the defendant which is subsequent or incidental
                                                                                to those tests or flows from them and is based on or
                                                                                includes the abovementioned decisions, in particular
1. Dismisses the application for annulment;                                         the acts embodied in:
2. Orders the Translation Centre for Bodies of the European Union                   (a) the list of candidates who were admitted to the
     to pay to the applicant compensation equivalent to two and a                       written tests for Competition COM/A/12/98
     half months’ Community unemployment benefit together with                          (A7/A6) 02, European Public Administration;
     default interest at the annual rate of 5% from 15 January 1999
     until payment in full;
                                                                                (b) the list of candidates who were admitted to the
                                                                                oral tests for Competition COM/A/12/98 (A7/A6)
3. Dismisses the remainder of the application for compensation;                         02, European Public Administration;
4. Orders the parties to bear their own costs.                                      (c) the list of successful candidates in Competition
                                                                                COM/A/12/98 (A7/A6) 02, European Public
                                                                                Administration;
(1) OJ C 258 of 15.8.1998.                                                  — or in any event annul the decision of the selection board
                                                                                not to include the applicant in the list of candidates for the
                                                                                written test and in the subsequent oral process;
                                                                            — order the defendant to pay the costs.
 ---pagebreak--- 20.11.1999             EN                    Official Journal of the European Communities                                      C 333/27
Grounds for annulment and main arguments                                Guarantee Fund) (FOGASA), of the other part. Those agree-
                                                                        ments, which are based fundamentally on a reduction in the
The decision of the selection board to cancel certain of the            rate of interest normally applicable to loans granted by those
                                                                        two bodies, are intended to facilitate the scheduling and
questions in test (b), giving instructions to the markers not to
                                                                        deferment of repayment of the debts due to them.
take them into account and to readjust the weight attached to
the questions which remained valid on completion of that test,
altered the rules and the conditions which the selection                SNIACE considers that the contested decision is vitiated by a
board had itself originally laid down for the conduct of the            manifest error of assessment, inasmuch as the alleged aid
competition.                                                            received by it does not constitute State aid, does not affect
                                                                        trace between Member States and does not distort or threaten
                                                                        to distort competition in the single market.
The grounds given for Decisions 21.06.99/IX.A2./023 and
IX.A.2 D(98)/500R-EL 501502 were insufficient.
                                                                        Second, the applicant undertaking maintains that it has acted
                                                                        in accordance with the rules in force in the Kingdom of Spain;
                                                                        those rules are applicable to all undertakings which find
                                                                        themselves in any of the situations specified therein, and not
                                                                        to any specific undertakings or sectors. Thus, the measures
                                                                        criticised by the Commission are, in reality, agreements
                                                                        concluded pursuant to the provisions of labour law and social
                                                                        security law. In particular, the recovery of debts owed by
Action brought on 24 August 1999 by SNIACE S.A.                         undertakings to the Tesorerı́a General de la Seguridad Social
  against the Commission of the European Communities                    (General Social Security Treasury) in the event of non-payment
                                                                        of contributions is governed by the General Law on Social
                         (Case T-190/99)                                Security. It therefore involves measures of general application
                                                                        forming part of a system already in existence, in respect of
                                                                        which the Member States possess exclusive competence and
                        (1999/C 333/65)                                 on which the Commission has not expressed a view pursuant
                                                                        to Article 88(1) EC. In addition, as regards FOGASA, that body
                                                                        bears a responsibility for guaranteeing the payment of salaries
                  (Language of the case: Spanish)                       which forms an integral part of the essential provisions of
                                                                        contracts of employment.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the              Lastly, the applicant states that the sole purpose of the alleged
European Communities on 24 August 1999 by SNIACE S.A.,                  aid is to facilitate the recovery of labour-related debts and
established in Madrid, represented by Fernando Rodrı́guez               debts owed to the Social Security Treasury; consequently, it
Carretero, Miguel Angel Gómez de Liaño Botella and José Luis          cannot be said that the criteria enabling it to be characterised
Baró Fuentes, of the Madrid Bar, with an address for service in        as State aid have been fulfilled, since it neither emanates from
Luxembourg at the Chambers of Alain Lorang, 2 Rue Dahlias.              State funds nor reduces the lever of those funds.
The applicant claims that the Court should:
— annul Article 1(a) and (b) of the decision of the Com-
    mission of 28 October 1998;
— annul Article 2 of the decision of the Commission of
                                                                        Action brought on 1 September 1999 by WM. Wrigley
    28 October 1998 inasmuch as it requires the Kingdom of
                                                                        JR. Company against the Office for Harmonisation in the
    Spain to take the necessary measures to recover from the
                                                                                Internal Market
    recipient the aid referred to in Article 1 and unlawfully
    made available to it;
                                                                                (Case T-193/99)
— order the European Commission to pay to SNIACE all
    of the costs incurred by the applicant in the present                                       (1999/C 333/66)
    proceedings.
                                                                                (Language of the case: English)
Pleas in law and main arguments
                                                                        An action against the Office for Harmonisation in the Internal
The present action is directed against Commission Decision              Market was brought before the Court of First Instance of the
1999/395/EC of 28 October 1998 on State aid implemented                 European Communities on 1 September 1999 by WM. Wrig-
by Spain in favour of SNIACE SA (OJ 1999 L 149 of                       ley JR. Company, having its registered office in Chicago, USA,
16.6.1999, p. 40). The applicant undertaking, which is the              represented by Helmut Eichmann, Gerhard Barth, Ulrich
recipient of the alleged aid, contests the categorisation as aid        Blumenröder, Christa Niklas-Falter and Maximillian Kinkeldey,
of the agreements concluded between that undertaking and                with an address for service in Luxembourg at the office of
the Tesorerı́a de la Seguridad Social (Social Security Treasury),       Pierre Kihn, Office de Brevets, Ernest T. Freylinger, P.O. Box
of the one part, and the Fondo de Garantı́a Salarial (Salary            48, Strassen.


title: Case C-403/99: Action brought on 20 October 1999 by the Italian Republic against the Commission of the European Communities

text:
C 366/22               EN                     Official Journal of the European Communities                                     18.12.1999
Action brought on 20 October 1999 by the Italian Repub-                       The contested regulation is also vitiated inasmuch as it
lic against the Commission of the European Communities                        infringes Article 40 of the EC Treaty (now, after amend-
                                                                              ment, Article 34 EC), which prohibits any discrimination
                                                                              between producers, and is in breach of the principle of
                         (Case C-403/99)
                                                                              equal treatment.
                         (1999/C 366/36)
                                                                         (1) Commission Regulation (EC) No 1639/1999 of 26 July 1999
                                                                             fixing the maximum compensatory aid resulting from the rates
An action against the Commission of the European Communi-                    for the conversion of the euro into national currency units and
ties was brought before the Court of Justice of the European                 the exchange rates applicable on 1 July 1999, OJ 1999 L 194,
Communities on 20 October 1999 by the Italian Republic,                      p. 33.
                                                                         (2) OJ 1998 L 349, p. 1.
represented by Umberto Leanza, acting as Agent, assisted by              (3) OJ 1998 L 349, p. 48.
Danilo Del Gaizo, Avvocato dello Stato, with an address                  (4) OJ 1999 L 98, p. 8.
for service in Luxembourg at the Italian Embassy, 5 Rue
Marie-Adélaïde.
The applicant claims that the Court should:
— annul the contested regulation (1);
— order the Commission to pay the costs.                                 Action brought on 22 October 1999 by the Commission
                                                                         of the European Communities against the Federal Repub-
                                                                                lic of Germany
Pleas in law and main arguments
                                                                                (Case C-406/99)
(1) The Commission established a measure of general appli-
     cation of the provision laid down by the Council in
     Article 5 of Regulation No 2799/98 (2), applicable to all                                      (1999/C 366/37)
     direct aid affected by the freezing of the conversion rates,
     which did not take into consideration the various operative         An action against the Federal Republic of Germany was
     events giving rise to the entitlement to aid.                       brought before the Court of Justice of the European Communi-
                                                                         ties on 22 October 1999 by the Commission of the European
     In the contested regulation the Commission, without                 Communities, represented by Götz zur Hausen, Legal Adviser,
     giving the slightest reason for its decision, fixed the level       acting as Agent, with an address for service in Luxembourg at
     of direct aid where the date of the operative event was             the office of Carlos Gómez de la Cruz, of its Legal Service,
     1 July 1999, and did not increase it by applying the                Wagner Centre C 254, Kirchberg.
     weighting provided for in Article 6 of Regulation
     No 2813/98 (3).
                                                                         The applicant claims that the Court should:
     Determination of the maximum amounts of the aid in
     question is contrary to the general determination adopted           (1) declare that, by failing to adopt within the prescribed
     by the Commission in Article 6 of Regulation No 2813/98                  time-limit the measures necessary in order to comply with
     and is vitiated by the fact that it infringes the aforemen-              Directive 96/56/EC (1) of the European Parliament and
     tioned Article.                                                          the Council of 3 September 1996 amending Directive
                                                                              67/548/EEC on the approximation of laws, regulations
     Finally, the reasons which led the Commission to adopt                   and administrative provisions relating to the classification,
     the contested provision are not set out at all in the                    packaging and labelling of dangerous substances, the
     preamble to the contested regulation which thus also                     Federal Republic of Germany has failed to fulfil its
     infringes Article 253 EC and is in breach of essential                   obligations under the EC Treaty;
     procedural requirements inasmuch as it is vitiated by a
     lack of a statement of reasons and misuse of powers.                (2) order the Federal Republic of Germany to pay the costs.
(2) The unlawfulness of the contested regulation is even more            The pleas in law and main arguments are the same as in Case
     evident in view of the fact that, although the intention had        C-386/992 (2); the time-limit laid down in Article 2 of the
     been to fix, by way of Regulation No 755/99 (4), of                 directive expired on 1 June 1998.
     12 April 1999, the maximum amounts of direct aid in
     respect of which the dates of the relevant operative events
     were 1 and 3 January 1999, the Commission had instead               (1) OJ L 236 of 18.9.1996, p. 35.
     applied the increase provided for by Article 6 of Regulation        (2) See p. 20 of this Official Journal.
     No 2813/98. The different treatment afforded to aid the
     date of whose operative event was 1 July 1999 is not
     justified in any way.


title: Appeal brought on 10 July 1998 by Mario Costacurta against the judgment delivered on 26 May 1998 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-177/96 between Mario Costacurta and Commission of the European Communities (Case C-249/98 P)

text:
C 278/22              EN                Official Journal of the European Communities                                  5.9.98
Reference for a preliminary ruling by the Arrondissements-         Ð annul the Commission appointing authority's decision
rechtbank te Arnhem by order of that court of 2 April                  of 22 July 1996 expressly rejecting the appellant's
1998 in the criminal proceedings against M. G. Berendse-               complaint concerning his requests for application of
         Koenen and H. D. Berendse, a partnership                      the weightings for Zaire,
                       (Case C-246/98)
                        (98/C 278/37)
                                                                   Ð order the Commission to pay the costs of both
                                                                       proceedings,
Reference has been made to the Court of Justice of
the European Communities by order of the
Arrondissementsrechtbank te Arnhem (District Court,                the above being without prejudice to all other rights,
Arnhem) of 2 April 1998, received at the Court Registry            entitlements, pleas in law and remedies relied on by the
on 9 July 1998, for a preliminary ruling in the case               appellant.
of M. G. Berendse-Koenen and H. D. Berendse, a
partnership, on the following questions:
                                                                   Pleas in law and main arguments adduced in support:
1. Does the Verordening Stoffen met sympathico
    mimetische werking (PVV) 1991 and, more
    particularly, Articles 2 and 3 thereof, contain technical
    regulations which, pursuant to Article 8 of Council            Ð Manifest contradiction        in the grounds   for  the
    Directive 83/189/EEC (1), as it stood at the time when             judgment,
    the Verordening came into force, should have been
    notified to the Commission beforehand?
                                                                   Ð Fundamental error Ð miscalculation: according to an
2. Does the Verordening Stoffen met sympathico                         analysis of the documents used by the Court of First
    mimetische werking (PVV) 1991 and, more                            Instance, the fact that the appellant's remuneration
    particularly, Articles 2 and 3 thereof, contain                    was paid in Belgian francs during the period between
    provisions which constitute obstacles to freedom of                June 1994 and July 1996 reduced his purchasing
    trade for the purposes of Article 30 of the EC Treaty?             power by 4,1 %, contrary to the legal finding in the
                                                                       judgment under appeal to the effect that it had
(1) OJ L 109, 26.4.1983, p. 8.                                         increased by 9 %,
                                                                   Ð Manifestly erroneous reasoning: even supposing that
                                                                       prices were parallel and purchasing power became
                                                                       stable in Kinshasa and Brussels/Luxembourg as from
Appeal brought on 10 July 1998 by Mario Costacurta                     June 1994 (quod non), that would not mean that
against the judgment delivered on 26 May 1998 by                       prices and purchasing power were equal; and in no
the Fifth Chamber of the Court of First Instance of                    way would it mean that this was also true of the
the European Communities in Case T-177/96 between                      period between March 1993 and May 1994.
Mario Costacurta and Commission of the European
                         Communities
                                                                   (1) OJ C 209, 4.7.1998, p. 38.
                      (Case C-249/98 P)
                        (98/C 278/38)
An appeal against the judgment delivered on 26 May
1998 by the Fifth Chamber of the Court of First Instance
of the European Communities in Case T-177/96 between
Mario Costacurta and the Commission of the European                Action brought on 10 July 1998 by the Commission of the
Communities was brought before the Court of Justice of                 European Communities against the French Republic
the European Communities on 10 July 1998 by Mario                                         (Case C-250/98)
Costacurta, represented by Albert Rodesch, with an
address for service in Luxembourg at 7Ð11 Route d'Esch.                                    (98/C 278/39)
The appellant claims that the Court should:
                                                                   An action against the French Republic was brought before
Ð declare the appeal admissible,                                   the Court of Justice of the European Communities
                                                                   on 10 July 1998 by the Commission of the European
Ð hold the appeal to be well founded,                              Communities, represented by Antonio Caeiro, Legal
                                                                   Adviser, and Bernard Mongin, of its Legal Service, acting
Ð set aside the judgment delivered on 26 May 1998 by               as Agents, with an address for service in Luxembourg at
    the Court of First Instance (Fifth Chamber) in Case            the office of Carlos Gómez de la Cruz, Wagner Centre,
    T-177/96 Costacurta v. Commission (1),                         Kirchberg.


title: Case C-99/09: Reference for a preliminary ruling from the Sąd Najwyższy (Republic of Poland) lodged on 11 March 2009 — Polska Telefonia Cyfrowa sp. z o. o. v Prezes Urzędu Komunikacji Elektronicznej

text:
               6.6.2009

               EN

               Official Journal of the European Union

               C 129/6

         Reference for a preliminary ruling from the Sąd Najwyższy (Republic of Poland) lodged on 11 March 2009 — Polska Telefonia Cyfrowa sp. z o. o. v Prezes Urzędu Komunikacji Elektronicznej
   (Case C-99/09)
   2009/C 129/10
   Language of the case: Polish

      Referring court

   Sąd Najwyższy

      Parties to the main proceedings

      Applicant: Polska Telefonia Cyfrowa sp. z o. o.

      Defendant: Prezes Urzędu Komunikacji Elektronicznej

      Question referred

   Is Article 30(2) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (1) … to be interpreted as meaning that the competent regulatory authority of a Member State, when ensuring that direct charges to subscribers do not act as a disincentive for the use of the additional facility of porting numbers, has an obligation to take account of the costs incurred by mobile telephone network operators in providing that facility?

      (1)  OJ 2002 L 108, p. 51.


title: Case C-142/16: Judgment of the Court (Second Chamber) of 26 April 2017 — European Commission v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Environment — Directive 92/43/EEC — Article 6(3) — Conservation of natural habitats — Construction of a coal-fired power plant in Moorburg (Germany) — Natura 2000 areas situated upstream of that coal-fired power plant on the corridor of the Elbe river — Assessment of the implications of a plan or project for a protected site)

text:
               19.6.2017

               EN

               Official Journal of the European Union

               C 195/5

         Judgment of the Court (Second Chamber) of 26 April 2017 — European Commission v Federal Republic of Germany
   (Case C-142/16) (1)

   ((Failure of a Member State to fulfil obligations - Environment - Directive 92/43/EEC - Article 6(3) - Conservation of natural habitats - Construction of a coal-fired power plant in Moorburg (Germany) - Natura 2000 areas situated upstream of that coal-fired power plant on the corridor of the Elbe river - Assessment of the implications of a plan or project for a protected site))
   (2017/C 195/06)
   Language of the case: German

      Parties

      Applicant: European Commission (represented by: C. Hermes and E. Manhaeve, acting as Agents)

      Defendant: Federal Republic of Germany (represented by T. Henze and J. Möller, acting as Agents, assisted by W. Ewer, Rechtsanwalt)

      Operative part of the judgment

   The Court:

               1.

               Declares that, by authorising the construction of the coal-fired power plant in Moorburg, near Hamburg (Germany), without conducting an appropriate and comprehensive assessment of its implications, the Federal Republic of Germany has failed to fulfil its obligations under Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora;

               2.

               Dismisses the remainder of the action;

               3.

               Orders each party to bear its own costs.

      (1)  OJ C 165, 10.5.2016.


title: Case C-3/08: Judgment of the Court (Fourth Chamber) of 1 October 2009 (Reference for a preliminary ruling from the Tribunal du travail de Nivelles — Belgium) — Ketty Leyman v Institut national d’assurance maladie-invalidité (INAMI) (Reference for a preliminary ruling — Social security schemes — Invalidity benefits — Regulation (EEC) No 1408/71 — Article 40(3) — Different benefit schemes in the Member States — Disadvantages for migrant workers — Contributions on which there is no return)

text:
               21.11.2009

               EN

               Official Journal of the European Union

               C 282/7

         Judgment of the Court (Fourth Chamber) of 1 October 2009 (Reference for a preliminary ruling from the Tribunal du travail de Nivelles — Belgium) — Ketty Leyman v Institut national d’assurance maladie-invalidité (INAMI)
   (Case C-3/08) (1)

   (Reference for a preliminary ruling - Social security schemes - Invalidity benefits - Regulation (EEC) No 1408/71 - Article 40(3) - Different benefit schemes in the Member States - Disadvantages for migrant workers - Contributions on which there is no return)
   2009/C 282/11
   Language of the case: French

      Referring court

   Tribunal du travail de Nivelles

      Parties to the main proceedings

      Applicant: Ketty Leyman

      Defendant: Institut national d’assurance maladie-invalidité (INAMI)

      Re:

   Reference for a preliminary ruling — Tribunal du travail de Nivelles (Belgium) — Lawfulness, in the light of Article 18 EC, of Council Regulation No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ 1971 149, p. 2) as amended — Invalidity allowance — Obstacle to the exercise of free movement as a result of the existence of different indemnification schemes

      Operative part of the judgment

   Article 39 EC must be interpreted as precluding application by the competent authorities of a Member State of national legislation which, in accordance with Article 40(3)(b) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005, makes acquisition of the right to invalidity benefits subject to the condition that a period of primary incapacity of one year has elapsed, where such application has the result that a migrant worker has paid into the social security scheme of that Member State contributions on which there is no return and is therefore at a disadvantage by comparison with a non-migrant worker.

      (1)  OJ C 79, 29.3.2008.


title: Case C-549/12 P: Appeal brought by the Federal Republic of Germany against the judgment of the General Court (Third Chamber) of 19 September 2012 in Case T-265/08 Federal Republic of Germany v European Commission, lodged on 29 November 2012

text:
               16.2.2013

               EN

               Official Journal of the European Union

               C 46/15

         Appeal brought by the Federal Republic of Germany against the judgment of the General Court (Third Chamber) of 19 September 2012 in Case T-265/08 Federal Republic of Germany v European Commission, lodged on 29 November 2012
   (Case C-549/12 P)
   2013/C 46/29
   Language of the case: German

      Parties

      Appellant: Federal Republic of Germany (Represented by: T. Henze, acting as Agent, and by U. Karpenstein and C. Johann, Rechtsanwälte)

      The other parties to the proceedings: European Commission, the Kingdom of Spain, the French Republic and the Kingdom of the Netherlands

      Form of order sought

   The appellant claims that the Court should:

               1.

               set aside the judgement of the General Court of the European Union of 19 September 2012 in Case T-265/08 Federal Republic of Germany v European Commission; interveners supporting the Federal Republic of Germany: Kingdom of Spain, French Republic and Kingdom of the Netherlands, concerning an action for annulment of Commission Decision C(2008) 1690 final of 30 April 2008 reducing the financial assistance granted from the European Regional Development Fund (ERDF) to the Operational Programme in the Objective 1 area of Land Thüringen (Federal Republic of Germany) (1994-1999), in accordance with Commission Decision C(94)1939/5 of 5 August 1994
                     and
                   annul Commission Decision C(2008) 1690 final of 30 April 2008 reducing the financial assistance granted from the European Regional Development Fund (ERDF) to the Operational Programme in the Objective 1 area of Land Thüringen (Germany) (1994-1999);

               2.

               order the Commission to pay the costs.

      Grounds of appeal and main arguments

   The subject matter of this appeal is the judgment of the General Court of 19 September 2012 in Case T-265/08 Germany v Commission, whereby the General Court dismissed the Federal Republic of Germany’s application for annulment of Commission Decision C(2008) 1690 final of 30 April 2008 reducing the financial assistance granted from the European Regional Development Fund (ERDF) to the Operational Programme in the Objective 1 area of Land Thüringen (Germany) (1994-1999), in accordance with Commission Decision C(94)1939/5 of 5 August 1994.
   The appellant relies on two grounds of appeal:

               First, the appellant claims that the General Court breached Article 24(2) of Council Regulation (EEC) No 4253/88, (1) in conjunction with Article 1 of Council Regulation (EC, Euratom) No 2988/95 (2) and the principle of the conferral of limited powers (Article 5(2) TEU, Article 7 TFEU; formerly Article 5 EC), in so far as it erroneously assumed that even administrative errors made by national authorities could constitute ‘irregularities’ justifying the application of financial corrections by the Commission (first part of the first ground of appeal). Even if a financial correction for an administrative error might in principle be conceivable, the judgment under appeal should still be set aside since the General Court unlawfully assumed that even infringements of national law and errors which do not affect the European Union budget could constitute ‘irregularities’ justifying financial corrections (second part of the first ground of appeal).

               Secondly, the appellant submits that the General Court also breached Article 24(2) of Regulation No 4253/88, in conjunction with the principle of the conferral of limited powers (Article 5(2) TEU, Article 7 TFEU), inasmuch as it erroneously conferred on the Commission the power to carry out financial corrections on the basis of extrapolation (first part of the second ground of appeal). Even if, in principle, the Commission had such a power to extrapolate, the General Court erred in its confirmation of the nature and manner of its application in the present case. On the one hand, a loss to the European Union budget has not been established as regards, at least, a part of the project at issue. On the other hand, the Commission should not have classified a portion of the errors complained of as systemic errors (second part of the second ground of appeal).

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

      (2)  Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1).


title: Case C-474/15 P: Appeal brought on 23 July 2015 by Harper Hygienics S.A. against the judgment delivered by the General Court on 13 May 2015 in Case T-363/13, Harper Hygienics v European Union Intellectual Property Office — Clinique Laboratories (CLEANIC natural beauty)

text:
               5.9.2016

               EN

               Official Journal of the European Union

               C 326/6

         Appeal brought on 23 July 2015 by Harper Hygienics S.A. against the judgment delivered by the General Court on 13 May 2015 in Case T-363/13, Harper Hygienics v European Union Intellectual Property Office — Clinique Laboratories (CLEANIC natural beauty)
   (Case C-474/15 P)
   (2016/C 326/08)
   Language of the case: Polish

      Parties

      Appellant: Harper Hygienics S.A. (represented by: D. Rzążewska, radca prawny)

      Other parties to the proceedings: European Union Intellectual Property Office and Clinique Laboratories, LLC
   By order of the Court of Justice (Tenth Chamber) of 7 April 2016, the appeal was declared inadmissible in part and was dismissed as to the remainder.


title: ORDER OF THE COURT of 23 September 1998 in Joined Cases C-332/96 and C-333/96 (reference for a preliminary ruling from the Pretura Circondariale di Roma): Consorzio Nazionale Tabacchi Soc. Coop. a.r.l. (Conata) (C-332/96), Agrindustria Srl (C-333/96) v. Azienda di Stato per gli interventi nel mercato agricolo (AIMA) (Article 104(3) of the Rules of Procedure - Manifestly identical question)

text:
21.11.98              EN                  Official Journal of the European Communities                                      C 358/5
by failing to establish the codes of good agricultural               certain dangerous substances and preparations (OJ L 262,
practice and to notify the Commission thereof, the                   27.9.1976, p. 201), as amended by Council Directive
Kingdom of Spain has failed to fulfil its obligations under          91/173/EEC (OJ L 85, 5.4.1991, p. 34), and of
Articles 3 and 4 of Council Directive 91/676/EEC of                  Article 100a(4) of the EC Treaty Ð the Court (Sixth
12 December 1991 concerning the protection of waters                 Chamber), composed of: H. Ragnemalm, President of the
against pollution caused by nitrates from agricultural               Chamber, R. Schintgen, G. F. Mancini, P. J. G. Kapteyn
sources (OJ L 375, 31.12.1991, p. 1) Ð the Court (Sixth              (Rapporteur) and G. Hirsch, Judges; A. Saggio, Advocate-
Chamber), composed of: H. Ragnemalm, President of the                General; H. A. Rühl, Principal Administrator, for the
Chamber, G. F. Mancini, J. L. Murray (Rapporteur), G.                Registrar, has given a judgment on 1 October 1998, in
Hirsch and K. M. Ioannou, Judges; J. Mischo, Advocate-               which it has ruled:
General; R. Grass, Registrar, has given a judgment on
1 October 1998, in which it:
                                                                     The limit value established in the first sentence of point 23
                                                                     of Annex I to Council Directive 76/769/EEC of 27 July
1. Declares that by failing to designate the zones                   1976 on the approximation of the laws, regulations and
     considered to be vulnerable and to notify the                   administrative provisions of the Member States relating to
     Commission of those designations and by failing to              restrictions on the marketing and use of certain dangerous
     establish the codes of good agricultural practice for           substances and preparations, as amended by Council
     the autonomous communities other than Andalucia,                Directive 91/173/EEC of 21 March 1991, is applicable to
     Cantabria, Madrid, Murcia, Navarre and Valencia                 PCP, its salts and esters and to preparations produced
     and to notify the Commission thereof, the Kingdom               from those substances, but not to products treated with
     of Spain has failed to fulfil its obligations under             those substances or preparations.
     Articles 3 and 4 of Council Directive 91/676/EEC of
     12 December 1991 concerning the protection of
     waters against pollution caused by nitrates from                (1) OJ C 181, 14.6.1997.
     agricultural sources;
2. Orders the Kingdom of Spain to pay the costs.
(1) OJ C 108, 5.4.1997.
                                                                                ORDER OF THE COURT
                                                                                of 23 September 1998
                                                                     in Joined Cases C-332/96 and C-333/96 (reference for a
                                                                     preliminary ruling from the Pretura Circondariale di
                                                                     Roma): Consorzio Nazionale Tabacchi Soc. Coop. a.r.l.
               JUDGMENT OF THE COURT                                 (Conata) (C-332/96), Agrindustria Srl (C-333/96) v.
                                                                     Azienda di Stato per gli interventi nel mercato agricolo
                        (Sixth Chamber)                                                        (AIMA) (1)
                      of 1 October 1998
                                                                     (Article 104(3) of the Rules of Procedure Ð Manifestly
in Case C-127/97 (reference for a preliminary ruling from                                  identical question)
the Bayerisches Verwaltungsgericht Regensburg): Willi
                                                                                (98/C 358/11)
                Burstein v. Freistaat Bayern (1)
              (Article 100a(4) of the EC Treaty)
                                                                                (Language of the case: Italian)
                         (98/C 358/10)
               (Language of the case: German)                          (Provisional translation; the definitive translation will be
                                                                               published in the European Court Reports)
  (Provisional translation; the definitive translation will be
          published in the European Court Reports)                   In Joined Cases C-332/96 and C-333/96: reference to the
                                                                     Court under Article 177 of the EC Treaty from the
                                                                     Pretura Circondariale di Roma (Italy) for a preliminary
In Case C-127/97: reference to the Court under Article 177           ruling in the proceedings pending before that court
of the EC Treaty from the Bayerisches Verwaltungsgericht             between Consorzio Nazionale Tabacchi Soc. Coop. a.r.l.
Regensburg (Bavarian Administrative Court) (Germany),                (Conata) (C-332/96) and Agrindustria Srl (C-333/96) and
for a preliminary ruling in the proceedings pending before           Azienda di Stato per gli interventi nel mercato agricolo
that court between Willi Burstein and Freistaat Bayern Ð             (AIMA) on the validity of Commission Regulation (EC)
on the interpretation of Council Directive 76/769/EEC of             No 3477/93 of 17 December 1993 concerning the
27 July 1976 on the approximation of the laws,                       agricultural conversion rates to be applied in the
regulations and administrative provisions of the Member              tobacco sector (OJ L 317, 8.12.1993, p. 30) Ð the Court,
States relating to restrictions on the marketing and use of          composed of: G. C. Rodríguez Iglesias, President,
 ---pagebreak--- C 358/6               EN                  Official Journal of the European Communities                                     21.11.98
C. Gulmann, H. Ragnemalm, M. Wathelet and R.                         Circondariale, Pinerolo (District Magistrate's Court,
Schintgen, Presidents of Chambers, G. F. Mancini, J. C.              Pinerolo), of 3 September 1998, received at the Court on
Moitinho de Almeida, P. J. G. Kapteyn, J. L. Murray,                 21 September 1998, for a preliminary ruling in the case of
D. A. O. Edward, J.-P. Puissochet, G. Hirsch, P. Jann, L.            Renato Collino and Luisella Chiappero against Telecom
Sevón (Rapporteur) and K. M. Ioannou, Judges; J.                     Italia SpA on the following questions:
Mischo, Advocate-General; R. Grass, Registrar, has made
an order on 23 September 1998, the operative part of
which is as follows:                                                 (A)    Does Article 1 of Directive 77/187/EEC (1) apply to
                                                                            the transfer for value, authorised by law
                                                                            promulgated by the State and implemented by
Consideration of the question referred has not disclosed                    ministerial decree, of an undertaking managed by a
any factor of such a kind as to affect the validity of                      public entity which is a direct emanation of the
Article 5 of Commission Regulation (EC) No 3477/93 of                       State to a private company formed by another
17 December 1993 concerning the agricultural conversion                     public entity which holds all its shares, where the
rates to be applied in the tobacco sector.                                  activity transferred is assigned to the private
                                                                            company under the administrative licence system?
(1) OJ C 354, 23.11.1996.
                                                                     and if so
                                                                     (B1) Does Article 3(1) of Directive 77/187/EEC require it
                                                                            to be held that the continuation of the employment
Reference for a preliminary ruling by the Finanzgericht                     relationship with the transferor is mandatory, with
Düsseldorf by order of that court of 14 September 1998 in                   the result that the worker's length of service
  the case of Peacock AG against Hauptzollamt Paderborn                     continues to be computed as from the date on which
                                                                            he was taken on by the transferor and he continues
                       (Case C-339/98)
                                                                            to be entitled to payment of a lump sum by way of
                         (98/C 358/12)                                      severance pay which treats as a single unit the time
                                                                            spent by him in the transferor and transferee's
                                                                            employment?
Reference has been made to the Court of Justice of the
European Communities by order of the Finanzgericht
Düsseldorf (Finance Court, Düsseldorf) of 14 September               (B2) On a proper construction of Article 3(1), do the
1998, received at the Court Registry on 17 September                        worker's rights' transferred to the transferee in any
1998, for a preliminary ruling in the case of Peacock AG                    event include the advantages acquired by him while
against Hauptzollamt Paderborn on the following                             employed by the transferor, such as length of service
question:                                                                   if, under the system of collective bargaining
                                                                            applicable in the transferee's business, length of
                                                                            service entails the acquisition of rights of a financial
Is Note 5B to Chapter 84 of the combined nomenclature                       nature?
in the version which was in force from 1990 to 1995 to be
interpreted as meaning that the transmission of data using
                                                                     (1) OJ L 61, 5.3.1977, p. 26.
the network cards (1) described in more detail in the
grounds of this order is not to be regarded as a specific
function but as data processing, so that the network cards
are to be classified under heading 8473?
(1) In particular Microdyne Corporation's NE2000 and NE5500
    Ethernet Network Adapter Cards.                                  Reference for a preliminary ruling by the Tribunal da
                                                                     Comarca SetuÂbal, Third Civil Chamber, by order of that
                                                                     court of 15 July 1998 in the case of Vitor Manuel Mendes
                                                                     Ferreira and Maria Clara Delgado Correia Ferreira, his
                                                                     spouse, against Companhia de Seguros Mundial ConfiancËa
                                                                                S.A.
Reference for a preliminary ruling from the Pretura                                          (Case C-348/98)
Circondariale, Pinerolo (Italy), by order of that court of
3 September 1998 in the case of Renato Collino and                                            (98/C 358/14)
        Luisella Chiappero against Telecom Italia SpA
                       (Case C-343/98)
                                                                     Reference has been made to the Court of Justice of the
                         (98/C 358/13)                               European Communities by order of the Tribunal da
                                                                     Comarca (District Court), SetuÂbal, Third Civil Chamber,
                                                                     of 15 July 1998, received at the Court Registry on
Reference has been made to the Court of Justice of                   24 September 1998, for a preliminary ruling in the case of
the European Communities by order of the Pretura                     Vitor Manuel Mendes Ferreira and Maria Clara Delgado


title: Case T-379/11: Action brought on 21 July 2011 — Hüttenwerke Krupp Mannesmann and Others v Commission

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/55

         Action brought on 21 July 2011 — Hüttenwerke Krupp Mannesmann and Others v Commission
   (Case T-379/11)
   2011/C 269/122
   Language of the case: German

      Parties

      Applicants: Hüttenwerke Krupp Mannesmann GmbH (Duisburg, Germany), ROGESA Roheisengesellschaft Saar mbH (Dillingen, Germany), Salzgitter Flachstahl GmbH (Salzgitter, Germany), Thyssenkrupp Steel Europe AG (Duisburg, Germany) and voestalpine Stahl GmbH (Linz, Austria) (represented by: S. Altenschmidt and C. Dittrich, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               annul the Commission Decision of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council (C(2011) 2772) (OJ 2011 L 130, p. 1);

               —

               order the Commission to pay the costs of the proceedings.

      Pleas in law and main arguments

   The applicants challenge the Commission Decision of 27 April 2011 determining transitional Union-wide rules for harmonised free allocation of emission allowances pursuant to Article 10a of Directive 2003/87/EC of the European Parliament and of the Council. (1) They submit that this decision should be set aside in its entirety.
   In support of their action, the applicants put forward six pleas in law:

               1.

               First plea in law: the product benchmark for sintered ore breaches Article 10a of Directive 2003/87/EC (2)

               The applicants invoke the illegality of the conditions governing product benchmarks set out in Annex I to the contested decision.

                           —

                           Incompatibility with Article 10a(2) of Directive 2003/87
                           The applicants submit that the determination of the product benchmark for sintered ore breaches Article 10a(2) of Directive 2003/87 on the ground that the Commission included a plant for the production of pellets when establishing the average performance of the 10 % most efficient installations in a sector or subsector in the European Union as the starting point for determining the product benchmark. Pellets, however, are a different product from sintered ore, and for that reason plants producing pellets ought not to have been taken into account for the purpose of determining the 10 % most efficient sinter installations.

                           —

                           Incompatibility with Article 10a(1) of Directive 2003/87
                           The determination of the product benchmark for sintered ore is also at variance with Article 10a(1) of Directive 2003/87, as the Commission corrected data when determining the product benchmark for sintered ore. This, it is submitted, is not in line with the criteria for determining benchmarks which are laid down in Article 10a(1) of Directive 2003/87.

               2.

               Second plea in law: the product benchmark for hot metal breaches Article 10a of Directive 2003/87
               The determination of the product benchmark for hot metal, the applicants submit, also breaches Article 10a of Directive 2003/87, as the Commission did not take into account the full carbon content of the residual gases resulting from iron and steel production in respect of their use for electricity generation, but carried out reductions in the amount of approximately 25 %. It follows from the wording of the second sentence of the third subparagraph of Article 10a(1) of Directive 2003/87, from the general structure and purpose of that directive, and from its historical construction, that the Commission is not entitled to carry out such reductions.

               3.

               Third plea in law: breach of the obligation under the second paragraph of Article 296 TFEU to state reasons
               The applicants submit further that the Commission has failed to provide adequate reasons for its decision. The reasons given for the determination of the benchmarks are, it is submitted, deficient. Nor has the Commission provided proper grounds for the reservations which it has expressed concerning possible distortions of competition. This amounts to a breach of the second paragraph of Article 296 TFEU.

               4.

               Fourth plea in law: infringement of the principle of proportionality
               The contested decision, the applicants submit, also infringes the principle of proportionality with regard to the determination of the benchmarks for sintered ore and hot metal.

               5.

               Fifth plea in law: infringement of the principle of equal treatment
               The applicants further allege an infringement of the principle of equality.

               6.

               Sixth plea in law: need for a declaration that the contested decision is invalid in its entirety
               The applicants express the view that the decision must be annulled in its entirety on the ground that, in the event of a declaration of invalidity confined exclusively to the benchmarks for sintered ore and hot metal, a fallback method would, pursuant to the rule in Article 10(2)(b) of the contested decision, in conjunction with Article 3(c) thereof, automatically become applicable for the allocation of free allowances. This, the applicants submit, would have the result of affecting them even more adversely than if the Commission’s incorrect benchmark values were to be applied for sintered ore and hot metal.

      (1)  OJ 2011 L 130, p. 1.

      (2)  Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32).


title: Case F-62/06: Judgment of the Civil Service Tribunal (First Chamber) of 13 February 2007 — Guarneri v Commission (Officials — Remuneration — Family allowances — Dependent child allowance — Rule against overlapping allowances applicable to national allowances)

text:
               24.3.2007

               EN

               Official Journal of the European Union

               C 69/30

         Judgment of the Civil Service Tribunal (First Chamber) of 13 February 2007 — Guarneri v Commission
   (Case F-62/06) (1)

   (Officials - Remuneration - Family allowances - Dependent child allowance - Rule against overlapping allowances applicable to national allowances)
   (2007/C 69/60)
   Language of the case: French
   Parties

      Applicant: Daniela Guarneri (Woluwe-Saint-Étienne, Belgium) (represented by: E. Boigelot, lawyer)

      Defendant: Commission of the European Communities (represented by: J. Curall and D. Martin, Agents)
   Re:
   Annulment of the Commission's decision of 5 August 2005 applying the rule against overlapping allowances laid down in Article 67(2) of the Staff Regulations to the deduction of the Belgian orphans' pension from the family allowance received by the applicant and also annulment of the Appointing Authority's decision of 14 February 2006 rejecting the applicant's complaint against the contested decision.
   Operative part of the judgment
   The Tribunal:

               1.

               Annuls the decision of the Commission of the European Communities of 5 August 2005 in so far as it deducts the amount of the Belgian orphans' pension received by Mme Guarneri from the family allowance paid to her;

               2.

               Dismisses the remainder of the application;

               3.

               Orders the Commission of the European Communities to pay the costs;

               4.

               Orders the Council of the European Union to bear its own costs.

      (1)  OJ C 165, 15.7.2006, p. 35.


title: Case C-98/05: Judgement of the Court (First Chamber) of  1 June 2006  (reference for a preliminary ruling from the Østre Landsret — Denmark) — De Danske Bilimportører v Skatteministeriet (Sixth VAT Directive — Article 11(A)(2)(a) and (3)(c) — Taxable amount — Registration duty on new motor vehicles)

text:
               29.7.2006

               EN

               Official Journal of the European Union

               C 178/7

         Judgement of the Court (First Chamber) of 1 June 2006 (reference for a preliminary ruling from the Østre Landsret — Denmark) — De Danske Bilimportører v Skatteministeriet
   (Case C-98/05) (1)

   (Sixth VAT Directive - Article 11(A)(2)(a) and (3)(c) - Taxable amount - Registration duty on new motor vehicles)
   (2006/C 178/10)
   Language of the case: Danish
   Referring court
   Østre Landsret
   Parties to the main proceedings

      Applicant: De Danske Bilimportører

      Defendant: Skatteministeriet
   Re:
   Reference for a preliminary ruling — Østre Landsret — Interpretation of Article 11(A)(2)(a) and (3)(c) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145 p. 1) — Inclusion in the taxable amount relating to the sale of a new motor vehicle of a tax payable on registration of the vehicle
   Operative part of the judgement
   In the context of a contract of sale providing that, in accordance with the buyer's intended use of the vehicle, the dealer will supply it registered and for a price which includes the registration duty on new motor vehicles he paid before supplying the vehicle, that duty, for which the occurrence triggering liability is not the supply of the vehicle but its first registration in national territory, is not covered by the concept of taxes, duties, levies and charges within the meaning of Article 11(A)(2)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment. Such a duty corresponds to an amount received by the taxable person from the purchaser of the vehicle as repayment for expenses paid out in the name and for the account of the latter within the meaning of Article 11(A)(3)(c).

      (1)  OJ C 106, 20.4.2005.


title: Action brought on 10 July 1998 by the Commission of the European Communities against the French Republic (Case C-250/98)

text:
C 278/22              EN                Official Journal of the European Communities                                  5.9.98
Reference for a preliminary ruling by the Arrondissements-         Ð annul the Commission appointing authority's decision
rechtbank te Arnhem by order of that court of 2 April                  of 22 July 1996 expressly rejecting the appellant's
1998 in the criminal proceedings against M. G. Berendse-               complaint concerning his requests for application of
         Koenen and H. D. Berendse, a partnership                      the weightings for Zaire,
                       (Case C-246/98)
                        (98/C 278/37)
                                                                   Ð order the Commission to pay the costs of both
                                                                       proceedings,
Reference has been made to the Court of Justice of
the European Communities by order of the
Arrondissementsrechtbank te Arnhem (District Court,                the above being without prejudice to all other rights,
Arnhem) of 2 April 1998, received at the Court Registry            entitlements, pleas in law and remedies relied on by the
on 9 July 1998, for a preliminary ruling in the case               appellant.
of M. G. Berendse-Koenen and H. D. Berendse, a
partnership, on the following questions:
                                                                   Pleas in law and main arguments adduced in support:
1. Does the Verordening Stoffen met sympathico
    mimetische werking (PVV) 1991 and, more
    particularly, Articles 2 and 3 thereof, contain technical
    regulations which, pursuant to Article 8 of Council            Ð Manifest contradiction        in the grounds   for  the
    Directive 83/189/EEC (1), as it stood at the time when             judgment,
    the Verordening came into force, should have been
    notified to the Commission beforehand?
                                                                   Ð Fundamental error Ð miscalculation: according to an
2. Does the Verordening Stoffen met sympathico                         analysis of the documents used by the Court of First
    mimetische werking (PVV) 1991 and, more                            Instance, the fact that the appellant's remuneration
    particularly, Articles 2 and 3 thereof, contain                    was paid in Belgian francs during the period between
    provisions which constitute obstacles to freedom of                June 1994 and July 1996 reduced his purchasing
    trade for the purposes of Article 30 of the EC Treaty?             power by 4,1 %, contrary to the legal finding in the
                                                                       judgment under appeal to the effect that it had
(1) OJ L 109, 26.4.1983, p. 8.                                         increased by 9 %,
                                                                   Ð Manifestly erroneous reasoning: even supposing that
                                                                       prices were parallel and purchasing power became
                                                                       stable in Kinshasa and Brussels/Luxembourg as from
Appeal brought on 10 July 1998 by Mario Costacurta                     June 1994 (quod non), that would not mean that
against the judgment delivered on 26 May 1998 by                       prices and purchasing power were equal; and in no
the Fifth Chamber of the Court of First Instance of                    way would it mean that this was also true of the
the European Communities in Case T-177/96 between                      period between March 1993 and May 1994.
Mario Costacurta and Commission of the European
                         Communities
                                                                   (1) OJ C 209, 4.7.1998, p. 38.
                      (Case C-249/98 P)
                        (98/C 278/38)
An appeal against the judgment delivered on 26 May
1998 by the Fifth Chamber of the Court of First Instance
of the European Communities in Case T-177/96 between
Mario Costacurta and the Commission of the European                Action brought on 10 July 1998 by the Commission of the
Communities was brought before the Court of Justice of                 European Communities against the French Republic
the European Communities on 10 July 1998 by Mario                                         (Case C-250/98)
Costacurta, represented by Albert Rodesch, with an
address for service in Luxembourg at 7Ð11 Route d'Esch.                                    (98/C 278/39)
The appellant claims that the Court should:
                                                                   An action against the French Republic was brought before
Ð declare the appeal admissible,                                   the Court of Justice of the European Communities
                                                                   on 10 July 1998 by the Commission of the European
Ð hold the appeal to be well founded,                              Communities, represented by Antonio Caeiro, Legal
                                                                   Adviser, and Bernard Mongin, of its Legal Service, acting
Ð set aside the judgment delivered on 26 May 1998 by               as Agents, with an address for service in Luxembourg at
    the Court of First Instance (Fifth Chamber) in Case            the office of Carlos Gómez de la Cruz, Wagner Centre,
    T-177/96 Costacurta v. Commission (1),                         Kirchberg.
 ---pagebreak--- 5.9.98                EN                Official Journal of the European Communities                                    C 278/23
The Commission of the European Communities claims                  1. Should Articles 6 and/or 52 of the EC Treaty be
that the Court should:                                                 interpreted as precluding as incompatible therewith a
                                                                       restriction resulting from the legislation of a Member
                                                                       State concerning the taxation of assets, which grants a
Ð declare that, by failing to adopt the laws, regulations              shareholder an exemption from wealth tax in respect
    and administrative measures necessary in order to                  of capital invested in shares in an undertaking Ð
    comply with Council Directive 89/594/EEC of                        provided the shares form part of a material
    30 October 1989 amending Directives 73/362/EEC,                    shareholding Ð but restricts that exemption to shares
    77/452/EEC, 78/686/EEC, 78/1026/EEC and 80/154/                    in a company established in that Member State?
    EEC relating to the mutual recognition of diplomas,
    certificates and other evidence of formal qualifications
    as doctors, nurses responsible for general care, dental        2. If question 1 is answered in the negative, should
    practitioners, veterinary surgeons and midwives,                   Articles 73b and 73d of the EC Treaty be interpreted
    together with Directives 75/363/EEC, 78/1027/EEC                   as precluding as incompatible therewith a restrictive
    and 80/155/EEC concerning the coordination of                      provision such as that described in question 1?
    provisions laid down by law, regulation or
    administrative action relating to the activities of
    doctors, veterinary surgeons and midwives (1), the
    French Republic has failed to fulfil its obligations
    under Directive 89/594/EEC,
                                                                   Action brought on 10 July 1998 by the Commission of the
Ð order the French Republic to pay the costs.                          European Communities against the French Republic
                                                                                (Case C-252/98)
Pleas in law and main arguments adduced in support:                                          (98/C 278/41)
Under the third paragraph of Article 189 and Article 5 of          An action against the French Republic was brought before
the EC Treaty, each Member State is required to take all           the Court of Justice of the European Communities on
necessary measures to transpose directives into its                10 July 1998 by the Commission of the European
domestic legal order prior to the expiry of the time limit         Communities, represented by Antonio Caeiro, Principal
prescribed for doing so. That time limit, laid down in             Legal Adviser, and Bernard Mongin, of its Legal Service,
Article 28 of Directive 89/594/EEC, expired on 8 May               acting as Agents, with an address for service in
1991, but France has not communicated the provisions of            Luxembourg at the office of Carlos Gómez de la Cruz,
domestic law to be adopted.                                        Wagner Centre, Kirchberg.
(1) OJ L 341, 23.11.1989, p. 19.
                                                                   The Commission of the European Communities claims
                                                                   that the Court should:
                                                                   Ð declare that, by failing to adopt the laws, regulations
                                                                       and administrative measures necessary in order to
Reference for a preliminary ruling by the Gerechtshof te               comply with Articles 48 and 52 of the EC Treaty, as
's-Gravenhage in the case of C. Baars Jr against Inspecteur            interpreted by the Court of Justice in its judgments in
der Belastingdienst Particulieren/Ondernemingen Gorin-                 Heylens (1) and Vlassopoulou (2), with regard to
                             chem                                      persons who hold a diploma as a specialist nurse
                                                                       obtained by the direct route' which has not been
                       (Case C-251/98)                                 officially approved in France and who wish to pursue
                                                                       in that country the profession of a nurse providing
                        (98/C 278/40)
                                                                       general care, and, in particular, by requiring such
                                                                       persons systematically to sit the final examinations
                                                                       covering the whole of the programme contained in the
Reference has been made to the Court of Justice of the                 three years of study required to qualify as a nurse,
European Communities by judgment of the Gerechtshof te                 without first taking into account the training already
's-Gravenhage (Regional Court of Appeal, The Hague) of                 acquired by the person concerned in another Member
8 July 1998, received at the Court Registry on 10 July                 State, albeit that a partial or total dispensation has
1998, for a preliminary ruling in the case of C. Baars Jr              been allowed by France, the French Republic has
against Inspecteur der Belastingdienst Particulieren/                  failed to fulfil its obligations under the Treaty,
Ondernemingen (Inspector, Head of the Tax Office Unit
responsible for Individuals/Undertakings) Gorinchem on
the following questions:                                           Ð order the French Republic to pay the costs.


title: Case C-228/05: Judgment of the Court (Third Chamber) of 14 September 2006 (reference for a preliminary ruling from the Commissione tributaria di primo grado di Trento — Italy) — Stradasfalti Srl v Agenzia delle Entrate — Ufficio di Trento (Sixth VAT Directive — Articles 17(7) and 29 — Right to deduct input VAT)

text:
               18.11.2006

               EN

               Official Journal of the European Union

               C 281/15

         Judgment of the Court (Third Chamber) of 14 September 2006 (reference for a preliminary ruling from the Commissione tributaria di primo grado di Trento — Italy) — Stradasfalti Srl v Agenzia delle Entrate — Ufficio di Trento
   (Case C-228/05) (1)

   (Sixth VAT Directive - Articles 17(7) and 29 - Right to deduct input VAT)
   (2006/C 281/23)
   Language of the case: Italian
   Referring court
   Commissione tributaria di primo grado di Trento
   Parties to the main proceedings

      Applicant: Stradasfalti Srl

      Defendant: Agenzia delle Entrate — Ufficio di Trento
   Re:
   Reference for a preliminary ruling — Commissione tributaria di primo grado di Trento — Interpretation of Articles 17(7) and 29 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Right to deduct VAT on inputs — National provision restricting the right to deduct without consulting the committee provided for under Article 29 of the directive
   Operative part of the judgment
   The Court rules:

               1.

               The first sentence of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment requires the Member States, in order to respect the procedural obligation of consultation laid down by Article 29 of that directive, to inform the Advisory Committee on value added tax established by that article that they intend to adopt a national measure derogating from the general system of deducting value added tax and to provide that committee with sufficient information to enable it to examine the measure in full knowledge of the facts.

               2.

               The first sentence of Article 7(7) of the Sixth Directive 77/388 must be interpreted as not authorising a Member State to exclude goods from the system of deducting value added tax without first consulting the Advisory Committee on value added tax established by Article 29 of that directive. Nor does that provision authorise a Member State to adopt measures excluding goods from the system of deducting that tax which contain no indication as to their limitation in time and/or which form part of a body of structural adjustment measures whose aim is to reduce the budget deficit and allow State debt to be repaid.

               3.

               In so far as an exception from the system of deductions has not been established in accordance with Article 17(7) of the Sixth Directive, the national tax authorities may not rely as against a taxable person on a provision derogating from the principle of the right to deduct value added tax set out in Article 17(1) of that directive. A taxable person which has been subject to that derogating provision must be able to recalculate its value added tax debt in accordance with Article 17(2) of the Sixth Directive 77/388, in so far as the goods and services have been used for the purposes of taxable transactions.

      (1)  OJ C 193, 6. 8. 2005.


title: Case C-399/10 P: Appeal brought on 4 August 2010 by Bouygues SA and Bouygues Télécom SA against the judgment delivered on 21 May 2010 by the General Court (Third Chamber, Extended Composition) in Joined Cases T-425/04, T-444/04, T-450/04 and T-456/04 France and Others v Commission

text:
               20.11.2010

               EN

               Official Journal of the European Union

               C 317/14

         Appeal brought on 4 August 2010 by Bouygues SA and Bouygues Télécom SA against the judgment delivered on 21 May 2010 by the General Court (Third Chamber, Extended Composition) in Joined Cases T-425/04, T-444/04, T-450/04 and T-456/04 France and Others v Commission
   (Case C-399/10 P)
   ()
   2010/C 317/27
   Language of the case: French

      Parties

      Appellants: Bouygues SA and Bouygues Télécom SA (represented by: J. Vogel, F. Sureau, D. Theophile, avocats)

      Other parties to the proceedings: European Commission, French Republic, France Télécom SA, Association française des opérateurs de réseaux et services de télécommunications (AFORS Télécom)

      Form of order sought

               —

               set aside the judgment of the General Court of 21 May 2010 in Joined Cases T-425/04, T-444/04, T-450/04 and T-456/04;

               —

               ruling again, allow the forms of order sought by Bouygues SA and Bouygues Télécom SA, namely: (i) annulment of Article 1 of Commission Decision 2006/621/, (1) solely in so far as it implicitly but necessarily refused to categorise as aid the declarations made by the French State in July, September and October 2002; and (ii) annulment of Article 2 of the decision, as a consequence of which the French State will be bound to recover the aid established to have been granted to France Telécom;

               —

               in the alternative, should the Court consider that the state of the proceedings is not fit for judgment, refer the case back to the General Court for reconsideration in T-425/04, T-444/04, T-450/04 and T-456/04, taking into account the legal viewpoint developed by the Court;

               —

               order the Commission, France Télécom and the French State to pay the costs.

      Pleas in law and main arguments

   Bouygues and Bouygues Télécom put forward three grounds in support of their appeal.
   By their first ground, which comprises three parts, the appellants argue that the General Court erred in law in upholding the Commission’s analysis to the effect that the declarations made by the French State in July, September and October 2002 did not, separately or taken together, constitute one or more forms of State aid. The General Court thus disregarded the concept of use of State resources for the purposes of Article 107(1) TFEU in holding that declarations of support could entail a use of resources only if the form and amount of the support envisaged were specified, were to be of immediate and certain application and were legally binding (first part). The General Court furthermore distorted the rules of national law presented to the Commission in stating that those rules in turn require, in order for promises of support to have binding effect, be specified as to their details of application and the amount of support promised and not conditional on default by the debtor, whereas under national law, the promise of a result is sufficient to bind the party making the promise. The condition requiring the occurrence of financial difficulties is not an obstacle to a commitment of guarantee and the fact the State conducts itself in such a way as to give the impression that it will act in a certain way is such as engage its liability (second part). Lastly, the General Court disregarded the concept of use of State resources for the purposes of Article 107(1) TFEU in holding that such a use cannot be the result of the reaction of the markets entailing, for the State, a factual obligation to remedy France Télécom’s financing problems (third part).
   By its second ground, which comprises two parts, the appellants allege an error of law by the General Court as regards the categorisation as aid of the shareholder loan granted by the State to France Télécom in the form of an opening of a line of credit of EUR 9 billion in December 2002. In that regard, Bouygues and Bouygues Télécom state, first, that the General Court disregarded the concept of aid for the purposes of Article 107(1) TFEU in holding that the advantage resulting from the announcement of an opening of a line of credit is not sufficiently closely linked to the transfer of resources resulting from that opening for it to be possible to establish a finding of State aid. The appellants argue that the General Court required, incorrectly, that the advantage and the use of resources become closely merged.
   The appellants argue, second, that the General Court disregarded the concept of advantage for the purposes of Article 107(1) TFEU in considering separately the making available of the amount of EUR 9 billion to France Télécom to find that it did not entail any separate advantage in the form of an increase in the financial means available to France Télécom, without taking into account, in order to determine whether there was such an advantage, the reassuring effect which resulted from those same measures.

      (1)  Commission Decision 2006/621/EC of 2 August 2004 on the State Aid implemented by France for France Télécom (OJ 2006 L 257, p. 11).