title: JUDGMENT OF THE COURT (Fifth Chamber) of 24 September 1998 in Case C-35/97: Commission of the European Communities v. French Republic (Failure to fulfil obligations - Article 48 of the EC Treaty - Unemployment benefits - Award of supplementary retirement pension points - Conditions of dismissal - Article 7 of Regulation (EEC) No 1612/68 - Frontier workers)

text:
7.11.98                EN                  Official Journal of the European Communities                                      C 340/3
2. A Member State whose authorities, in interpreting                       indicated in a declaration for release into free
     Articles 3(1) and 4(1) of the Second Directive 79/32/                 circulation, and where the levying of customs duties
     EEC, erroneously classified a product such as that at                 on products covered by the heading under which those
     issue in this case as a cigarette and did not suspend the             goods ought to have been classified was suspended at
     operation of the decision adopted, is not bound by                    the date on which that declaration was accepted but
     Community law to compensate the manufacturer for                      had been re-established when the error was detected,
     the damage sustained by the latter as a result of that                the customs authorities must not take account of that
     erroneous decision.                                                   suspension in order to recalculate the amount of the
                                                                           customs duties legally due on the date on which the
                                                                           declaration was accepted.
(1) OJ C 354 of 23.11.1996.
                                                                      2. When the Commission, after consultation with the
                                                                           Customs Code Committee, has delivered a decision
                                                                           addressed to a Member State holding that there was,
                                                                           in a specific case, no justification for granting
                                                                           remission of import duties pursuant to the provisions
               JUDGMENT OF THE COURT                                       of Council Regulation (EEC) No 1430/79 of 2 July
                        (Fifth Chamber)                                    1979 on the repayment or remission of import or
                                                                           export duties, and when that decision does not contain
                     of 24 September 1998                                  any legal or factual indication relating to the legal
                                                                           basis for effecting post-clearance recovery of the
in Case C-413/96 (reference for a preliminary ruling from
                                                                           import duties concerned under Regulation No 1697/
   the Hùjesteret): Skatteministeriet v. Sportgoods A/S (1)
                                                                           79, a national court may rule on the latter question,
(Customs duty Ð Constitution of a customs debt Ð Post-                     having recourse, if appropriate, to the procedure under
clearance recovery of import duties Ð Remission of                         Article 177 of the EC Treaty.
                         import duties)
                         (98/C 340/05)                                (1) OJ C 74 of 8.3.1997.
                (Language of the case: Danish)
  (Provisional translation; the definitive translation will be                       JUDGMENT OF THE COURT
          published in the European Court Reports)
                                                                                (Fifth Chamber)
                                                                                of 24 September 1998
In Case C-413/96: reference to the Court under Article 177
of the EC Treaty from the Hùjesteret (Danish Supreme                  in    Case    C-35/97: Commission of the             European
Court) for a preliminary ruling in the proceedings pending                          Communities v. French Republic (1)
before that court between Skatteministeriet and
Sportgoods A/S Ð on the interpretation of Article 2(1) of
                                                                      (Failure to fulfil obligations Ð Article 48 of the EC Treaty
Council Regulation (EEC) No 1697/79 of 24 July 1979 on
                                                                      Ð Unemployment benefits Ð Award of supplementary
                                                                      retirement pension points Ð Conditions of dismissal Ð
the post-clearance recovery of import duties or export
duties which have not been required of the person liable
                                                                      Article 7 of Regulation (EEC) No 1612/68 Ð Frontier
for payment on goods entered for a customs procedure
                                                                                workers)
involving the obligation to pay such duties (OJ L 197 of                                       (98/C 340/06)
3.8.1979, p. 1) and on the legal effect of a decision
delivered by the Commission following consultation with
the Customs Code Committee Ð the Court (Fifth                                         (Language of the case: French)
Chamber), composed of: C. Gulmann, President of the
Chamber, M. Wathelet, J. C. Moitinho de Almeida,
D. A. O. Edward (Rapporteur) and L. Sevón, Judges; S.                   (Provisional translation; the definitive translation will be
Alber, Advocate General; R. Grass, Registrar, has given a                       published in the European Court Reports)
judgment on 24 September 1998, in which it has ruled:
                                                                      In Case C-35/97: Commission of the European
1. Article 2(1) of Council Regulation (EEC) No 1697/79                Communities (Agents: Pieter Jan Kuyper and Pieter van
     of 24 July 1979 on the post-clearance recovery of                Nuffel) v. French Republic (Agents: Kareen Rispal-
     import duties or export duties which have not been               Bellanger and Claude Chavance) Ð application for a
     required of the person liable for payment on goods               declaration that, by excluding frontier workers residing in
     entered for a customs procedure involving the                    Belgium from qualifying for supplementary retirement
     obligation to pay such duties must be construed as               pension points after being placed in early retirement, the
     meaning that, where a post-clearance inspection has              French Republic has failed to fulfil its obligations under
     revealed an error in the tariff classification of goods          Article 48(2) of the EC Treaty and Article 7 of Regulation
 ---pagebreak--- C 340/4               EN                  Official Journal of the European Communities                                    7.11.98
(EEC) No 1612/68 of the Council of 15 October 1968 on                for the award of public service contracts (OJ L 209 of
freedom of movement for workers within the Community                 24.7.1992, p. 1) Ð the Court (Sixth Chamber), composed
(OJ L 257 of 19.10.1968, p. 2) Ð the Court (Fifth                    of: H. Ragnemalm, President of the Chamber, G. F.
Chamber), composed of: C. Gulmann, President of the                  Mancini, P. J. G. Kapteyn (Rapporteur), J. L. Murray and
Chamber, M. Wathelet, J. C. Moitinho de Almeida,                     K. M. Ioannou, Judges; N. Fennelly, Advocate General;
D. A. O. Edward (Rapporteur) and J.-P. Puissochet,                   H. A. Rühl, Principal Administrator, for the Registrar, has
Judges; S. Alber, Advocate General; L. Hewlett,                      given a judgment on 24 September 1998, in which it has
Administrator, for the Registrar, has given a judgment on            ruled:
24 September 1998, in which it:
                                                                     1. Neither Article 1(1) and (2), Article 2(1) nor any other
                                                                         provision of Council Directive 89/665/EEC of
1. declares that, by excluding frontier workers residing in              21 December 1989, on the coordination of the laws,
     Belgium from qualifying for supplementary retirement                regulations and administrative provisions relating to
     pension points after being placed in early retirement,              the application of review procedures to the award of
     the French Republic has failed to fulfil its obligations            public supply and public works contracts, may be
     under Article 48(2) of the EC Treaty and Article 7 of               interpreted as meaning that, if Council Directive 92/
     Regulation (EEC) No 1612/68 of the Council of                       50/EEC of 18 June 1992 relating to the coordination
     15 October 1968 on freedom of movement for                          of procedures for the award of public service contracts
     workers within the Community;                                       has not been transposed by the end of the period laid
                                                                         down for that purpose, the review bodies in the
                                                                         Member States with jurisdiction to review procedures,
2. orders the French Republic to pay the costs.                          for the award of public supply contracts and public
                                                                         works contracts, established under Article 2(8) of
                                                                         Directive 89/665/EEC, may also hear appeals
(1) OJ C 94 of 22.3.1997.                                                concerning procedures for the award of public service
                                                                         contracts. However, in order to observe the
                                                                         requirement that domestic law must be interpreted in
                                                                         conformity with Directive 92/50/EEC and the
                                                                         requirement that the rights of individuals must be
                                                                         protected effectively, the national court must
                                                                         determine whether the relevant provisions of its
              JUDGMENT OF THE COURT                                      domestic law allow recognition of a right for
                                                                         individuals to bring an appeal in relation to awards of
                       (Sixth Chamber)
                                                                         public service contracts. In circumstances such as
                    of 24 September 1998                                 those arising in the present case, the national court
                                                                         must determine in particular whether such a right of
in Case C-76/97 (reference for a preliminary ruling from                 appeal may be exercised before the same bodies as
the Bundesvergabeamt): Walter Tögel v. Niederöster-                      those established to hear appeals concerning the award
             reichische Gebietskrankenkasse (1)                          of public supply contracts and public works contracts.
(Public service contracts Ð Direct effect of a directive not
transposed into national law Ð Classification of services            2. Services consisting in the transport of injured and sick
                 for the transport of patients)                          persons with a nurse in attendance come within both
                                                                         Annex I A, Category No 2, and Annex I B, Category
                         (98/C 340/07)                                   No 25, to Directive 92/50/EEC, so that a contract for
                                                                         those services is covered by Article 10 of Directive 92/
                                                                         50/EEC.
               (Language of the case: German)
                                                                     3. The provisions of Titles I and II of Directive 92/50/
                                                                         EEC may be relied on directly by individuals before
                                                                         national courts. As regards the provisions of Titles III
  (Provisional translation; the definitive translation will be           to VI, these may also be relied on by an individual
         published in the European Court Reports)                        before a national court if it is clear from an individual
                                                                         examination of their wording that they are
                                                                         unconditional and sufficiently clear and precise.
In Case C-76/97: reference to the Court under Article 177
of the EC Treaty from the Bundesvergabeamt (Federal                  4. Community law does not require an awarding
Procurement Office) (Austria), for a preliminary ruling in               authority in a Member State to intervene, at the
the proceedings pending before that court between Walter                 request of an individual, in existing legal situations
Tögel and Niederösterreichische Gebietskrankenkasse Ð                    concluded for an indefinite period or for several years
on the interpretation of Council Directive 89/665/EEC of                 where those situations came into being before expiry
21 December 1989 on the coordination of the laws,                        of the period for transposition of Directive 92/50/
regulations and administrative provisions relating to the                EEC.
application of review procedures to the award of public
supply and public works contracts (OJ L 395 of                       (1) OJ C 108 of 5.4.1997.
30.12.1989, p. 33), and of Council Directive 92/50/EEC
of 18 June 1992 relating to the coordination of procedures


title: Case C-47/07 P: Appeal brought on 2 February 2007 by Masdar (UK) Ltd against the judgment of the Court of First Instance (Fifth Chamber) delivered on 16 November 2006 in Case T-333/03: Masdar (UK) Ltd v The Commission of the European Communities

text:
               14.4.2007

               EN

               Official Journal of the European Union

               C 82/20

         Appeal brought on 2 February 2007 by Masdar (UK) Ltd against the judgment of the Court of First Instance (Fifth Chamber) delivered on 16 November 2006 in Case T-333/03: Masdar (UK) Ltd v The Commission of the European Communities
   (Case C-47/07 P)
   (2007/C 82/37)
   Language of the case: English
   Parties

      Appellant: Masdar (UK) Ltd (represented by: A. Bentley and P. Green, Barristers)

      Other party to the proceedings: Commission of the European Communities
   Form of order sought
   The applicant claims that the Court should:

               —

               set aside in its entirety the judgment of the Court of First Instance of 16 November 2006 in Case T-333/03, MASDAR (U.K) Ltd. v Commission of the European Communities.

               —

               order the Commission to pay to the Applicant:

                           (i)

                           The sum of EUR 448,947.78 claimed by the Appellant in Case T-333/03, or failing this, the sum of EUR 249,314.35 or such other sum as the Court considers appropriate; and

                           (ii)

                           Interest on the amount in (i);

               —

               order the Commission to pay the costs of the present proceedings and of the proceedings before the Court of First Instance.

         Pleas in law and main arguments
   The Appellant submits that the judgment of the Court of First Instance (‘CFI’) should be set aside on the following grounds:

               1.

               The CFI erred in law when it characterised the Appellant as merely having acted pursuant to its contractual obligations towards Helmico, as a result of which the CFI dismissed the Appellant's claims founded on unjust enrichment and negotiorum gestio. In doing so, the CFI failed to have regard to the Appellant's entitlement to terminate the sub-contracts as at 2 October 1998.

               2.

               Irrespective of whether the Appellant acted pursuant to a contractual obligation towards Helmico or not, the CFI erred in law by failing to take into consideration (i) the fact that the Commission was not in the position of an ordinary contractor, but had powers of recovery which it could exercise pursuant to the Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities (1) and (ii) how such powers were exercised by the Commission.

               3.

               The CFI erred in law in holding that (i) the Appellant cannot be said to have acted benevolently, (ii) the Commission was able to manage the project itself, and (iii) there is a requirement that a person claiming under the principle of negotiorum gestio must necessarily act without the knowledge of the principal.

               4.

               The CFI's findings on the pleas of unjust enrichment and negotiorum gestio on the one hand, and the plea of legitimate expectations on the other hand, are inconsistent.

               5.

               In rejecting the Appellant's claim based on negligence or fault liability, the CFI erred in considering that insufficient argument had been adduced by the Appellant, given that the matter speaks for itself on the facts of this case in the particular circumstances where the Commission exercises powers of recovery under the Financial Regulation.

               6.

               The CFI erred in holding (i) that there was no evidence before the Court to prove that the assurances relied upon by the Appellant were communicated at the meeting of 2 October 1998 and (ii) that it was highly unlikely that such assurances were communicated.

               7.

               The CFI erred in law in holding that the Commission's failure to make a note of the meeting of 2 October 1998 established the informality of that meeting and, from this error, it erroneously discounted the possibility of the Commission having communicated such assurances by one means or another. Further, the CFI wrongly took into account the manner by which the assurances were conveyed, and erroneously failed to take into account the proper context, namely a context in which the Commission had committed itself to do no more than pay for work done pursuant to a properly constituted contractual specification, and for which the Commission already had a budget.

      (1)  OJ L 356, p. 1.


title: Case T-199/00: Action brought on 31 July 2000 by Gerber Foods International Limited against the Commission of the European Communities

text:
21.10.2000             EN                     Official Journal of the European Communities                                      C 302/27
Action brought on 28 July 2000 by Hershey Foods                          European Communities on 31 July 2000 by Gerber Foods
Corporation against the Office for Harmonization in the                  International Limited, London, represented by Neil Warriner
          Internal Market, Trade Marks and Designs                       and Craig Pouncey of Herbert Smith, Brussels.
                        (Case T-198/00)
                                                                         The applicant claims that the Court should:
                        (2000/C 302/66)
                                                                         —     annul the Commission Decision dated 2 May 2000
                   (Language of the case: English)                             finding that the remission of import duties in a particular
                                                                               case is not justified (request submitted by the United
An action against the Office for Harmonization in the Internal                 Kingdom of Great Britain and Northern Ireland) (REM
Market, Trade Marks and Designs, was brought before the                        13/99); and
Court of First Instance of the European Communities on
28 July 2000 by Hershey Foods Corporation, a company
incorporated in Delaware, United States of America, represent-           —     order the Commission of the European Communities to
ed by Roger Wyand QC.                                                          pay the costs of the applicant in the present proceedings.
The applicant claims that the Court should:
—     alter the decision R 391/1999-3 of the Third Board of
      Appeal dated 29 May 2000 so that it annuls the decision            Pleas in law and main arguments
      of the Examiner in refusing the claimed mark and directs
      that the claimed mark be accepted for all goods applied
      for.
                                                                         The applicant imported processed tuna from Turkey, whose
                                                                         Turkish origin was certified by ATR.1 certificates issued by the
                                                                         Turkish customs authorities. Subsequent to an investigation in
Pleas in law and main arguments                                          Turkey, a mission report concluded that most of the raw
                                                                         materials used to produce the imported goods originated in
Trade Mark concerned:         Figurative mark in form of a ‘Kiss         third countries. Thus the tuna exported duty free to the
                              device with plume’ — Application           Community could not be considered to originate in Turkey.
                              No 712 828                                 HM Customs & Excise therefore issued to the applicant post-
                                                                         clearance demands in the amount of duty unpaid.
Product or Service:           certain goods in class 30
Contested        Decision     Refusal of Registration by the
before the Board of           Examiner                                   Subsequently, HM Customs & Excise submitted an application
Appeal:                                                                  to the Commission for a decision as to whether the remission
                                                                         of import duties was justified on the basis that a ‘special
Pleas in law:                 Infringement of Article 73 of              situation’ within the terms of Article 239 of Council Regulation
                              Regulation 40/94                           (EEC) No 2913/92 (1) and Article 905 of Commission Regu-
                                                                         lation (EEC) No 2454/93 (2) existed on the facts of the case.
                                                                         That application was rejected by the contested decision.
                                                                         The applicant argues that the contested decision is affected by
                                                                         several procedural and substantive defects and infringes in
Action brought on 31 July 2000 by Gerber Foods Inter-                    particular:
national Limited against the Commission of the European
                          Communities
                                                                         —     Article 239 of Regulation 2913/92;
                        (Case T-199/00)
                                                                         —     Decisions 4/72, 5/72, 1/75 and 1/80 of the EEC —
                        (2000/C 302/67)                                        Turkey Association Council;
                   (Language of the case: English)                       —     the principle of protection of legitimate expectations;
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               —     the principles of legality and proper administration;
 ---pagebreak--- C 302/28                EN                     Official Journal of the European Communities                                    21.10.2000
—     the principle of fair application of the law; and                   The fourth applicant claims that the Court should:
—     the obligation to provide proper reasoning.                         —     annul the Commission Decision dated 15 May 2000
                                                                                under reference REM 43/199 and award the costs of the
                                                                                application.
(1) Council Regulation (EEC) No 2913/92 of 12 October 1992
    establishing the Community Customs Code, OJ L 302, p. 1.
(2) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying
    down provisions for the implementation of Council Regulation          Pleas in law and main arguments
    (EEC) No 2913/92 establishing the Community Customs Code,
    OJ L 253, p. 1.
                                                                          The legislative and factual background is similar to that in Case
                                                                          T-199/00.
                                                                          The applicants seek the annulment of the contested decisions
                                                                          on the following grounds:
Action brought on 31 July 2000 by Glenryck UK Limited,                    —     The investigation in Turkey was both ultra vires and
Maple Leaf Foods UK Limited, Martin Mathew & Co                                 flawed.
Limited and North Country Quality Foods Limited against
       the Commission of the European Communities
                                                                          —     The applicants rights of defence had been violated as an
                                                                                UCLAF report on allegations of fraud had been established
                         (Case T-200/00)                                        without contacting the applicants to check the facts or
                                                                                seek clarification.
                         (2000/C 302/68)
                                                                          —     The Commission misunderstood the significance of the
                                                                                fact that the Turkish customs authorities had not with-
                    (Language of the case: English)                             drawn the relevant ATR movement certificates.
An action against the Commission of the European Communi-                 —     Contrary to the contested decision, the mixing of qualify-
ties was brought before the Court of First Instance of the                      ing and non-qualifying material does not invalidate the
European Communities on 31 July 2000 by Glenryck UK                             final product for preferential-duty purposes.
Limited, Maple Leaf Foods UK Limited, Martin Mathew & Co
Limited and North Country Quality Foods Limited, represented
by Eamon McNicholas, Malachy Cornwell-Kelly and Sally                     —     Contrary to the contested decision, there is a special
Saltissi of Dechert, London.                                                    situation or exceptional circumstance for the purposes of
                                                                                Article 239(1) of Council Regulation (EEC) No 2913/92.
The first applicant claims that the Court should:
                                                                          The third and the fourth applicants submit two additional
—     annul the Commission Decision dated 2 May 2000 under                grounds for annulment with regard to importations taking
      reference REM 14/199 and award the costs of the                     place in 1996:
      application.
                                                                          —     As a result of the implementation of the Customs Union,
The second applicant claims that the Court should:                              agricultural goods freely circulating in Turkey fall within
                                                                                the preferential-duty scheme.
—     annul the Commission decision dated 8 May 2000 under
      reference REM 15/199 and award the costs of the
                                                                          —     By refusing to inform the applicants about the findings
      application.
                                                                                of the investigation carried out in Turkey the Commission
                                                                                left the applicants to incur further financial risks, which
The third applicant claims that the Court should:                               taints the contested decision.
—     annul the Commission Decision dated 2 May 2000 under
      reference REM 16/199 and award the costs of the
      application.


title: Judgment of the Court (Fourth Chamber) of 10 May 2001 in Case C-285/00: Commission of the European Communities v French Republic (Failure by a Member State to fulfil its obligations — Failure to transpose Directive 89/48/EEC within the prescribed period — Recognition of diplomas giving access to the profession of psychologist)

text:
14.7.2001                 EN                     Official Journal of the European Communities                                             C 200/17
                  JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                           (Fourth Chamber)
                                                                                of 15 May 2001
                            of 10 May 2001
in Case C-285/00: Commission of the European Communi-                       in Case C-34/99 (reference for a preliminary ruling from
                       ties v French Republic (1)                           the House of Lords): Commissioners of Customs and
                                                                                Excise v Primback Ltd (1)
(Failure by a Member State to fulfil its obligations — Failure
to transpose Directive 89/48/EEC within the prescribed
period — Recognition of diplomas giving access to the
                      profession of psychologist)                           (Value added tax — Sixth Directive 77/388/EEC — Taxable
                                                                            amount — Retail credit sales of goods — Credit granted by
                                                                            a person other than the seller and at no cost to the customer
                            (2001/C 200/29)                                 — Payment by finance company to the seller of less than the
                                                                                price of the goods)
                      (Language of the case: French)
                                                                                (2001/C 200/30)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
In Case C-285/00: Commission of the European Communities                                         (Language of the case: English)
(Agent: B. Mongin) v French Republic (Agents: J.-F. Dobelle
and C. Bergeot-Nunes) — application for a declaration that, by
its failure to enact legislation specifically concerning the
recognition of diplomas giving access to the profession of                  In Case C-34/99: reference to the Court under Article 177 of
psychologist for the purpose of implementing, as regards that               the EC Treaty (now Article 234 EC) from the House of Lords
profession, Council Directive 89/48/EEC of 21 December                      (United Kingdom) for a preliminary ruling in the proceedings
1988 on a general system for the recognition of higher-                     pending before that court between Commissioners of Customs
education diplomas awarded on completion of professional                    and Excise and Primback Ltd — on the interpretation of
education and training of at least three years’ duration (OJ                Article 11A(1)(a) of Sixth Council Directive 77/388/EEC of
1989 L 19, p. 16), the French Republic has failed to fulfil its             17 May 1977 on the harmonisation of the laws of the Member
obligations under that directive — the Court (Fourth Chamber),              States relating to turnover taxes — Common system of value
composed of: A. La Pergola, President of the Chamber,                       added tax: uniform basis of assessment (OJ 1977 L 145, p. 1)
D.A.O. Edward (Rapporteur) and C.W.A. Timmermans, Judges;                   — the Court, composed of: G.C. Rodrı́guez Iglesias, President,
D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, for the                 C. Gulmann, A. La Pergola, V. Skouris (Presidents of Cham-
Registrar, has given a judgment on 10 May 2001, in which it:                bers), D.A.O. Edward, J.-P. Puissochet, L. Sevón, R. Schintgen
                                                                            (Rapporteur) and N. Colneric, Judges; S. Alber, Advocate
1.    Declares that, by its failure to enact legislation specifically       General; H. von Holstein, Deputy Registrar, for the Registrar,
      concerning the recognition of diplomas giving access to the           has given a judgment on 15 May 2001, in which it has ruled:
      profession of psychologist for the purpose of implementing, as
      regards that profession, Council Directive 89/48JEEC of
      21 December 1988 on a general system for the recognition of           On a proper construction of Article 11A(1)(a) of Sixth Council
      higher-education diplomas awarded on completion of pro-               Directive 77/388/EEC of 17 May 1977 on the harmonisation of
      fessional education and training of at least three years’ duration,   the laws of the Member States relating to turnover taxes — Common
      the French Republic has failed to fulfil its obligations under        system of value added tax: uniform basis of assessment, where a
      that directive;                                                       supply of goods for consideration has the following features:
2.    Orders the French Republic to pay the costs.
                                                                            —     a retail trader sells goods in return for payment of the advertised
                                                                                price which he invoices to the purchaser and which does not
                                                                                vary according to whether the customer pays in cash or by way
                                                                                of credit;
(1) OJ C 259 of 9.9.2000.
                                                                            —     should the purchaser so request, the acquisition of the goods is
                                                                                financed by the provision to him of interest-free credit by a
                                                                                finance company distinct from the seller;


title: Case C-106/00: Action brought on 21 March 2000 by the Commission of the European Communities against the Portuguese Republic

text:
C 163/10               EN                    Official Journal of the European Communities                                       10.6.2000
The Commission claims that the Court should:                            Action brought on 21 March 2000 by the Commission
                                                                        of the European Communities against the Portuguese
                                                                                Republic
— declare that, by failing to adopt and to notify to the
     Commission, within the time-limit laid down, the requisite
                                                                                (Case C-105/00)
     measures to establish and implement an effective system
     of strict protection for the sea turtle caretta caretta on
     Zakinthos so as to avoid any disturbance of the species                                     (2000/C 163/16)
     during its egg-laying period (end of May to end of August)
     and any activity which might bring about deterioration in,         An action against the Portuguese Republic was brought before
     or destruction of, its breeding areas, and consequently not        the Court of Justice of the European Communities on 31 March
     complying with its obligations pursuant to Article 12(1)(b)        2000 by the Commission of the European Communities,
     and (d) of Council Directive 92/43/EEC (1) of 21 May 1992          represented by Ana Maria Alves Vieira, of its Legal Service,
     on the conservation of natural habitats and of wild fauna          acting as Agent, with an address for service in Luxembourg at
     and flora, the Hellenic Republic has failed to fulfil its          the office of Carlos Gómez de la Cruz, of its Legal Service,
     obligations under the EC Treaty;                                   Wagner Centre, Kirchberg.
— order the Hellenic Republic to pay the costs.                         The applicant claims that the Court should:
                                                                        1. Declare that, by failing to adopt within the prescribed
                                                                             period all the provisions necessary to comply with Council
                                                                             Directive 97/70/EC of 11 December 1997 (1), the Portu-
Pleas in law and main arguments                                              guese Republic has failed to fulfil its obligations under the
                                                                             Treaty; and
According to the Commission, full and effective implemen-               2. Order the Portuguese Republic to pay the costs.
tation of Article 12(1) of Directive 92/43 requires the adoption
of specific laws, regulations or administrative measures and
the taking of substantive measures on site to protect the               Pleas in law and main arguments
particular species.
                                                                        The mandatory nature of the provisions of the third paragraph
                                                                        of Article 249 and the first paragraph of Article 10 of the EC
The Commission established in its reasoned opinion that there           Treaty requires Member States to adopt the measures necessary
was no specific institutional framework whatever for the                to transpose directives addressed to them into their domestic
protection of the sea turtle caretta caretta on Zakinthos, a fact       law before the expiry of the period prescribed for doing so.
which was not disputed by the Greek authorities in their reply          That period expired on 1 January 1999 without Portugal
of 29 October 1999.                                                     having brought into force the necessary provisions.
                                                                        (1) Council Directive 97/70/EC of 11 December 1997 setting up a
Secondly, the Commission referred in its reasoned opinion to                harmonised safety regime for fishing vessels of 24 metres in
the absence of coordinated measures for the protection of the               length and over (OJ 1998 L 34, p. 1).
sea turtle caretta caretta on Zakinthos, above all during the
sensitive period when it lays eggs.
The Hellenic Republic does not deny that it must adopt the
requisite measures to establish an effective system of protection
for the sea turtle caretta caretta on Zakinthos, in accordance
with Article 12 of Directive 92/43.                                     Action brought on 21 March 2000 by the Commission
                                                                        of the European Communities against the Portuguese
                                                                                Republic
The Commission thus finds that the Hellenic Republic has
failed to adopt appropriate measures to implement Article 12                                     (Case C-106/00)
of Directive 92/43 fully and effectively.
                                                                                (2000/C 163/17)
                                                                        An action against the Portuguese Republic was brought before
( 1) OJ L 206, 22.7.1992, p. 7.                                         the Court of Justice of the European Communities on 31 March
                                                                        2000 by the Commission of the European Communities,
                                                                        represented by Ana Maria Alves Vieira, of its Legal Service,
                                                                        acting as Agent, with an address for service in Luxembourg at
                                                                        the office of Carlos Gómez de la Cruz, of its Legal Service,
                                                                        Wagner Centre, Kirchberg.
 ---pagebreak--- 10.6.2000                EN                     Official Journal of the European Communities                                          C 163/11
The applicant claims that the Court should:                                The Commission claims that the Court should:
1. Declare that, by failing to adopt within the prescribed                 a) declare that, by not adopting and/or notifying to the
     period all the provisions necessary to comply with Council                  Commission the laws, regulations and administrative pro-
     Directive 97/41/EC of 25 June 1997 amending Direc-                          visions necessary to comply with Commission Directive
     tives 76/895/EEC, 86/362/EEC, 86/363/EEC and                                97/59/EC (1) of 7 October 1997 adapting to technical
     90/642/EEC (1), the Portuguese Republic has failed to fulfil                progress Council Directive 90/679/EEC (2) on the protec-
     its obligations under the Treaty; and                                       tion of workers from risks related to exposure to biological
                                                                                agents at work (seventh individual Directive within the
                                                                                meaning of Article 16(1) of Directive 89/391/EEC) (3), the
2. Order the Portuguese Republic to pay the costs.                               Republic of Austria has failed to fulfil its obligations under
                                                                                Article 2(1) of that directive;
                                                                           b) order the Republic of Austria to pay the costs.
Pleas in law and main arguments
The pleas in law and main arguments are analogous to those                 Pleas in law and main arguments
in Case C-105/00 (2); the time-limit for transposition expired
on 31 December 1998.
                                                                           The pleas in law and main arguments correspond to those put
                                                                           forward in Case C-105/00 (4); according to the Commission
                                                                           the time-limit for transposition expired on 31 March 1998
(1) Council Directive 97/41/EC of 25 June 1997 amending Directives
                                                                           without Austria having adopted the necessary measures in full
    76/895/EEC, 86/362/EEC, 86/363/EEC and 90/642/EEC relating             for all sectors and at all State levels, in particular at Land level.
    to the fixing of maximum levels for pesticide residues in and on,
    respectively, fruit and vegetables, cereals, foodstuffs of animal
    origin, and certain products of plant origin, including fruit and
    vegetables (OJ 1997 L 184, p. 33).                                     ( 1) OJ L 282, 15.10.1997, p. 33.
(2) See p. 10 of this Official Journal.                                    ( 2) OJ L 374, 31.12.1990, p. 1.
                                                                           ( 3) OJ L 183, 29.6.1989, p. 1.
                                                                           ( 4) Commission v Portugal, notice not yet published in the Official
                                                                                Journal.
Action brought on 23 March 2000 by the Commission
of the European Communities against the Republic of                        Action brought on 23 March 2000 by the Commission
                                 Austria                                   of the European Communities against the Republic of
                                                                                Austria
                           (Case C-110/00)
                                                                                (Case C-111/00)
                           (2000/C 163/18)                                                           (2000/C 163/19)
An action against the Republic of Austria was brought before               An action against the Republic of Austria was brought before
the Court of Justice of the European Communities on 23 March               the Court of Justice of the European Communities on 23 March
2000 by the Commission of the European Communities,                        2000 by the Commission of the European Communities,
represented by Nicola Yerrell, of its Legal Service, and Clemens           represented by Nicola Yerrell, of its Legal Service, and Clemens
Ladenburger, on secondment to its Legal Service under an                   Ladenburger, on secondment to its Legal Service under an
exchange with national civil servants, with an address for                 exchange with national civil servants, with an address for
service in Luxembourg at the office of Carlos Gómez de la                 service in Luxembourg at the office of Carlos Gómez de la
Cruz, of its Legal Service, C 254, Wagner Centre, Kirchberg.               Cruz, of its Legal Service, C 254, Wagner Centre, Kirchberg.


title: Case T-279/03: Action brought on 5 August 2003 by Galileo International Technology LLC and 13 Others against the Commission of the European Communities

text:
18.10.2003            EN                           Official Journal of the European Union                                        C 251/15
—     annul the decision of the Fourth Board of Appeal of                 Action brought on 5 August 2003 by Galileo
      the defendant of 30 April 2003 in appeal proceedings                International Technology LLC and 13 Others against the
      R 913/2001-4;                                                               Commission of the European Communities
                                                                                (Case T-279/03)
—     instruct the defendant to make a determination on the
                                                                                (2003/C 251/29)
      merits in opposition proceedings B 288680, taking
      account of the legal view of the matter formed by the
                                                                                (Language of the case: French)
      adjudicating court;
                                                                          An action against the Commission of the European
                                                                          Communities was brought before the Court of First Instance
—     order the defendant to pay the costs of the proceedings.            of the European Communities on 5 August 2003 by Claude
                                                                          Delcorde, Jean-Noël Louis, Julie-Anne Delcorde and Spyros
                                                                          Maniatopoulos, lawyers, represented by Claude Delcorde,
Pleas in law and main arguments                                           Jean-Noël Louis, Julie-Anne Delcorde and Spyros
                                                                          Maniatopoulos, lawyers, with an address for service in
                                                                          Luxembourg.
Applicant for Community        ECI Telecom Ltd.
trade mark:
Community trade mark           Word mark ‘Hi-FOCuS’ in respect
sought:                        of goods and services in Classes 9
                               and 38 — application No                    The applicants claim that the Court should:
                               1 338 029
Proprietor of mark or          The applicant
sign cited in the opposi-
tion proceedings:                                                         —    Prohibit the Commission from making any use of the
Mark or sign cited in          The German mark ‘FOCUS’ (No                     word ‘Galileo’ in relation to the satellite radio navigation
opposition:                    394 07 564) in respect of goods                 system project and to cease causing directly or indirectly
                               and services in Classes 3, 5, 6, 7,             any third party whatsoever to use that word in the con-
                               8, 9, 14, 15, 16, 18, 20, 21, 24,               text of that project, and prohibit it from having any part
                               25, 26, 28, 29, 30, 33, 34, 38,                 whatsoever in the use of that word by any third party;
                               39, 41 and 42
Decision of the Opposi-        Rejection of the opposition
tion Division:
                                                                          —    order the Commission to pay the applicants, acting
Decision of the Board of       Dismissal    of    the   applicant's            jointly and severally, the amount of EUR 50 million as
Appeal:                        appeal                                          compensation for the material damage suffered;
Pleas in law:                  —    Submission in the opposi-
                                    tion proceedings of adequate
                                    evidence of the applicant's
                                    earlier right;
                                                                          In the alternative,
                               —    Infringement of the appli-
                                    cant's right to a hearing;
                               —    Infringement of the appli-
                                    cant's right of due process;
                                                                               —    in the event that the Commission continues to use
                               —    Infringement of Article                         the word ‘Galileo’, order it to pay the applicants an
                                    42 of Regulation (EC) No                        amount of EUR 240 million;
                                    40/94 (1) and Rule 20(3)
                                    of Regulation (EC) No
                                    2868/95 (2).
                                                                               —    order the Commission to pay the applicant, as from
                                                                                the date of filing of the application, default interest
(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the                     calculated by reference to the ECB rate plus 2 per
    Community trade mark (OJ 1994 L 11, p. 1).                                      cent;
(2) Commission Regulation (EC) No 2868/95 of 13 December 1995
    implementing Council Regulation (EC) No 40/94 on the
    Community trade mark (OJ 1995 L 303, p. 1).
                                                                               —    order the defendant to pay the costs.
 ---pagebreak--- C 251/16              EN                       Official Journal of the European Union                                         18.10.2003
Pleas in law and main arguments                                         The pleas in law and arguments of the applicant are the same
                                                                        as in Case T-278/03 (Van Mannekus v Council).
The applicants, who are the proprietors of a number of trade
marks and company names containing the word ‘Galileo’ as an
                                                                        (1) OJ L 143, p. 5.
essential component, argue that the adoption of that word by
the Commission as the name for the Community project on
the European satellite radio navigation system infringes their
trade mark rights.
The action is based on Article 288 of the EC Treaty. The
applicants claim there is a likelihood of confusion based on
the alleged similarity between the signs in question and                Action brought on 5 August 2003 by Xanthippi Liakoura
between the goods and services sold by the applicants and                        against the Council of the European Union
the subject-matter of the Community project. They also claim
that the Commission acted unfairly and negligently with regard                                     (Case T-281/03)
to their rights, and plead infringement of the principle of
proportionality.                                                                                (2003/C 251/31)
                                                                                (Language of the case: French)
                                                                        An action against the Council of the European Union was
                                                                        brought before the Court of Justice of the European
                                                                        Communities on 5 August 2003 by Xanthippi Liakoura,
                                                                        residing in Brussels, represented by Jean A. Martin, lawyer.
Action brought on 8 August 2003 by Van Mannekus &
   Co. B.V. against the Council of the European Union
                        (Case T-280/03)
                                                                        The applicant claims that the Court should:
                        (2003/C 251/30)
                  (Language of the case: German)
                                                                        —     annul the decision of the Council of 5 May 2003 in so far
                                                                              as it does not:
An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 8 August 2003 by Van Mannekus & Co. B.V.,
Schiedam (Netherlands), represented by H. Bleier, lawyer.                    1.    delete, from the definitive report for the period from
                                                                                1 July 1999 to 30 June 2001, the following words
                                                                                included under general observations: ‘She is encour-
The applicant claims that the Court should:                                        aged to resume tasks of coordination and distribution
                                                                                of work in the Pool which she has performed
                                                                                efficiently in the past’;
—     annul Council Regulation (EC) No 986/2003 of 5 June
      2003 amending the antidumping measures imposed by
      Regulation (EC) No 360/2000 on imports of dead-burned
      (scintered) magnesia originating in the People's Republic              2.    include a reference in that report to her ‘capacity for
      of China (1);                                                                mobility and versatility’;
—     order the Council of the European Union to pay all the            —     order the Council to pay the costs.
      costs.
Pleas in law and main arguments                                         Pleas in law and main arguments
By the contested regulation the Council altered the nature of
antidumping duties on imports of dead-burned magnesia ori-              The applicant takes issue with the appointing authority's
ginating in the People's Republic of China on the basis of a            refusal to delete one phrase and include another in her staff
partial interim review.                                                 report for the period from 1 July 1999 to 30 June 2001.


title: Order of the Court (Second Chamber) of 30 March 2000 in Case C-435/98 P: Sari Kristiina Jouhki v Commission of the European Communities (Appeal — Officials — Notice of competition — Refusal of admission to competition — Manifestly inadmissible and unfounded appeal)

text:
C 163/6                 EN                      Official Journal of the European Communities                                        10.6.2000
                    ORDER OF THE COURT                                     The applicant claims that the Court should:
                        (Second Chamber)
                                                                           1. declare that
                         of 30 March 2000
                                                                               — by including, in Article 3 of Law No 98-389 of
in Case C-435/98 P: Sari Kristiina Jouhki v Commission of                           19.5.1998 (1), damage of less than ECU 500;
                 the European Communities (1)
(Appeal — Officials — Notice of competition — Refusal of                       — by considering, in Article 8 of that law, that the
admission to competition — Manifestly inadmissible and                              distributor of a defective product is liable in all cases
                         unfounded appeal)                                          and on the same basis as the manufacturer;
                          (2000/C 163/09)
                                                                               — by providing, in the second paragraph of Article 13 of
                                                                                that law, that the producer must prove that he took
                   (Language of the case: Finnish)                                  appropriate measures to prevent the consequences of
                                                                                a defective product in order to rely on the defences
                                                                                provided for by Article 7(d) and (e) of the Directive;
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)
                                                                               the French Republic has failed to fulfil its obligations under
                                                                               Articles 9, 3(3) and 7 of Directive 85/374/EEC (2).
In Case C-435/98 P: Sari Kristiina Jouhki, nurse, residing at
Pyhäjärvi (Finland), represented by H. Ojala, of the Oulu Bar
— appeal against the judgment of the Court of First Instance               2. order the French Republic to pay the costs.
of the European Communities (Fourth Chamber) of 16 Sep-
tember 1998 in Case T-215/97 Jouhki v Commission [1998]
ECR-SC I-A-503 and II-1513, seeking to have that judgment
set aside, the other party to the proceedings being the
Commission of the European Communities (Agents: E. Paasi-                  Pleas in law and main arguments
virta and F. Duvieusart-Clotuche) — the Court (Second Cham-
ber), composed of: R. Schintgen (Rapporteur), President of the
Chamber, G. Hirsch and V. Skouris, Judges; G. Cosmas,                      — Breach of Article 9 of Directive 85/374/EEC: the Directive
Advocate General; R. Grass, Registrar, has made an order on                    gives the Member States no discretion to depart from the
30 March 2000, the operative part of which is as follows:                      wording of Article 9 in respect of the threshold. Article 13
                                                                               does not constitute a minimum clause which would allow
1. The appeal is dismissed.                                                    a national legislature to provide for strict liability in respect
                                                                               of defective products, which is more stringent than the
2. Ms Jouhki is to pay the costs.                                              provisions of the Directive. That does not prevent France
                                                                               from applying its own laws on the guarantee in respect of
                                                                               hidden defects or on criminal liability for damage not
(1) OJ C 20 of 23.1.1999.
                                                                               covered by the Directive, as in the case of damage of less
                                                                               than ECU 500.
                                                                           — Breach of Article 3(3) of Directive 85/374/EEC: under
                                                                               Article 8 of Law No 98-389 the supplier is deemed
                                                                               equivalent to the producer whereas under Article 3(3) of
Action brought on 17 February 2000 by the Commission                           the Directive a supplier is only liable in the alternative,
of the European Communities against the French Republic                        where a producer is unknown. Contrary to the statements
                                                                               of the French Government, bringing an action against a
                           (Case C-52/00)                                      supplier who relies on a producer’s guarantee is not
                                                                               equivalent to a victim’s bringing an action directly against
                                                                               a producer. Article 3(3) of the Directive is intended to
                          (2000/C 163/10)                                      prevent inappropriate or improper actions against a sup-
                                                                               plier who can only be called into question if the consumer
An action against the French Republic was brought before the                   has given him an opportunity to inform him of the identity
Court of Justice of the European Communities on 17 February                    of the supplier before any action is brought. Moreover, an
2000 by the Commission of the European Communities,                            action brought directly against a producer generally allows
represented by Maria Patakia and Bernard Mongin of its Legal                   a remedy to be obtained, if necessary, within the jurisdic-
Service, acting as Agents, with an address for service in                      tion where the applicant resides if the victim can be
Luxembourg at the office of Carlos Gómez de la Cruz, Wagner                   considered to be a consumer within the meaning of
Centre, Kirchberg.                                                             Articles 13 and 14 of the Brussels Convention.


title: Case T-328/11: Judgment of the General Court of 24 April 2012 — Leifheit v OHIM (EcoPerfect) (Community trade mark — Application for Community word mark EcoPerfect — Absolute grounds for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009)

text:
               9.6.2012

               EN

               Official Journal of the European Union

               C 165/19

         Judgment of the General Court of 24 April 2012 — Leifheit v OHIM (EcoPerfect)
   (Case T-328/11) (1)

   (Community trade mark - Application for Community word mark EcoPerfect - Absolute grounds for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009)
   2012/C 165/33
   Language of the case: German

      Parties

      Applicant: Leifheit AG (Nassau, Germany) (represented by: G. Hasselblatt, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: K. Klüpfel, Agent)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 31 March 2011 (Case R 1658/2010-1) concerning an application for registration of the word sign EcoPerfect as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the application;

               2.

               Orders Leifheit AG to pay the costs.

      (1)  OJ C 269, 10.9.2011.


title: Case T-189/02: Action brought on 18 June 2002 by Ente per le Ville Vesuviane against Commission of the European Communities

text:
10.8.2002              EN                       Official Journal of the European Communities                                      C 191/31
Proprietor of the right to    Diesel SpA                                          ber 1986, and accordingly declare that Ente per le Ville
the trade mark or sign                                                            Vesuviane is entitled to final payment of the assistance
asserted by way of oppo-                                                          received until now and to have the remainder of the
sition in the opposition                                                          funding paid to it as requested on 13 December 2000
proceedings:                                                                      and still outstanding;
Trade mark or sign            Italian trade mark ‘DIESEL’ regis-
asserted by way of oppo-      tered under No 686092 and Com-               —      order the European Commission to pay the costs.
sition in the opposition      munity trade mark ‘DIESEL’, regis-
proceedings:                  tered under No 000743401 in
                              respect of goods within Classes 7,
                              11 and 21 and 11 and 21 respect-
                              ively
                                                                           Pleas in law and main arguments
Decision of the Oppo-         Registration application dismissed
sition Division:
                                                                           The applicant in the present case, a public-law consortium
Decision of the Board of      Appeal dismissed
                                                                           whose object is to protect and improve the complex of sites
Appeal:
                                                                           consisting of the Ville Vesuviane (the towns around Vesuvius)
                                                                           dating from the 18th Century, is contesting the decision of the
Grounds of claim:             Total lack of similarity between             Directorate-General for Regional Policy of the European
                              the two trade marks and no likeli-           Commission D (2002) 810111, 102504, of 13 March 2002
                              hood whatever of confusion or                bringing to an end the financial assistance paid to the applicant
                              association. Moreover, the party             itself, pursuant to Commission Decision No C (86) 2029/120
                              which brought opposition pro-                of 18 December 1986 of the European Regional Development
                              ceedings has not adduced evi-                Fund (intervention No 86/05/04/054).
                              dence of serious use of the mark
                              in respect of goods within the
                              classes in concerned.
                                                                           In support of its arguments, the applicant claims that:
                                                                           —      the contested measures were adopted on the mistaken
                                                                                assumption that the delays in the project being financed
                                                                                were not as a result of the relevant work being subject to
                                                                                a suspension for judicial reasons, within the meaning of
                                                                                Article 12 of Council Regulation (EEC) No 2083/93 of
Action brought on 18 June 2002 by Ente per le Ville                               20 July 1993 (1). On the contrary, while the project was
Vesuviane against Commission of the European Com-                                 under way, the applicant was obliged to initiate several
                            munities                                              court proceedings seeking the removal of the occupants
                                                                                of numerous areas and buildings which were to be
                                                                                restored as part of the improvements in the Vesuvius
                        (Case T-189/02)                                           towns of Favorita and Ruggiero. The applicant further
                                                                                claims that the defendant failed to make inquiries in that
                        (2002/C 191/53)                                           regard.
                   (Language of the case: Italian)                         —      its rights of defence were infringed in that, contrary to
                                                                                Article 4 of Commission Decision No C (86) 2020 of
                                                                                18 December 1986, the applicant, who was in receipt of
                                                                                assistance, did not have the opportunity to submit its
                                                                                own observations to the Commission before the adoption
An action against the Commission of the European Communi-                         by the latter of the contested decision.
ties was brought before the Court of First Instance of the
European Communities on 18 June 2002 by Ente per le Ville
Vesuviane, represented by Enrico Soprano, avvocato.
                                                                           (1) Council Regulation (EEC) No 2083/93 of 20 July 1993 amending
                                                                               Regulation (EEC) No 4254/88 laying down provisions for
                                                                               implementing Regulation (EEC) No 2052/898 as regards the
The applicant claims that the Court should:                                    European Regional Development Fund (OJ 1993 L 193, p. 34).
—     annul the decision of the Directorate-General for Regional
      Policy of the European Commission No D (2002) 810111
      of 13 March 2002 and No (86) 2029/120 of 18 Decem-


title: Case T-34/99: Action brought on 4 February 1999 by Philippe Pipeaux against the European Parliament

text:
15.5.1999             EN                      Official Journal of the European Communities                                     C 136/15
                                                        COURT OF FIRST INSTANCE
      ORDER OF THE COURT OF FIRST INSTANCE                               The applicants claims that the Court should:
                      of 15 January 1999                                 — annul the decision made on 4 November 1998, rejecting
                                                                             the complaint submitted by the applicant to the appointing
                                                                             authority on 4 June 1998 by which he contested the
in case T-199/97: Patricia Maugain v Commission of the                       decision adopted on 6 March 1998 by the Settlements
                   European Communities (1)                                  Office, Luxembourg, refusing to grant prior authorisation
                                                                             for reimbursement of the cost of a thalassotherapy cure at
(Member of the temporary staff — Contract for a limited                      Quiberon during the course of 1998;
period — Possibility of its being extended — Action for
            annulment — Manifest inadmissibility)                        — order the defendant to pay the costs.
                        (1999/C 136/33)                                  Pleas in law and main arguments
                   (Language of the case: French)                        The applicant contests the refusal by the Settlements Office of
                                                                         the Joint Sickness Insurance Scheme to cover the cost of a
                                                                         thalassotherapy cure during the course of 1998.
In case T-199/97: Patricia Maugain, a member of the temporary
staff of the Commission of the European Communities,
residing in Brussels, represented by Nicolas Lhoëst, of the              He pleads in that regard infringement of Article 25 of the Staff
Brussels Bar, with an address for service in Luxembourg at the           Regulations, together with a manifest error of assessment, in
office of Fiduciaire Myson SARL, 30 rue de Cessange, v                   that neither the contested decision nor any preparatory act
Commission of the European Communities (Agents: Gianluigi                brought to his notice explains in detail the medical reasons
Valsesia and Florence Duvieusart-Clotuche) — application for             which prompted the Settlements Office to refuse to cover the
annulment of the Commission’s decision of 26 August 1996                 cost, whereas the expense of such a cure had been borne by
expressly rejecting a request by the applicant for an extension          the Joint Scheme on several occasions in previous years and
of her contract as a member of the temporary staff and, in the           the applicant’s medical situation has not improved in any way
alternative, for annulment of the Commission’s decision of the           in the interim.
20 March 1997 expressly rejecting her complaint — the Court
of First Instance (Second Chamber), composed of: A. Potocki,
President, and C. W. Bellamy and A. W. H. Meij, Judges; H.
Jung, Registrar, made an order on 15 January 1999, the
operative part of which is as follows:
1. The application is dismissed;
                                                                         Action brought on 12 February 1999 by Sociedade
2. The parties are ordered to bear their own costs.                      Agrı́cola dos Arinhos, Lda and Others against the Com-
                                                                                mission of the European Communities
(1) OJ C 271, 6.9.1997.                                                                (Joined Cases T-38/99 to T-50/99)
                                                                                (1999/C 136/35)
                                                                                (Language of the case: Portuguese)
Action brought on 4 February 1999 by Philippe Pipeaux                    An action against the Commission of the European Communi-
               against the European Parliament                           ties was brought before the Court of First Instance of the
                                                                         European Communities on 12 February 1999 by Sociedade
                         (Case T-34/99)                                  Agrı́cola dos Arinhos, Lda, Sociedade Agrı́cola do Monte da
                                                                         Aldeia, Lda, António José da Veiga Teixeira, Sociedade Agrı́cola
                                                                         Monte da Senhora do Carmo SA, Sociedade Agrı́cola de
                        (1999/C 136/34)                                  Perescume, SA, Sociedade Agrı́cola Couto do Fornilhos, SA,
                                                                         casa Agrı́cola da Raposeira, Lda, José de Barahona Núncio,
                                                                         Prestase — Prestação de Serviços e Contabilidade, Lda, Socieda-
                   (Language of the case: French)                        de Agro-Pecuária da Herdade do Zambujal Lda, Francisco Luı́s
                                                                         Pinheiro Caldeira, Sociedade Agrı́cola Cabral de Ascenção, Lda,
An action against the European Parliament was brought before             and Joaquin Inácio Passanha Braancamp Sobral, residing and
the Court of First Instance of the European Communities on               established in Portugal, represented by Carlos Botelho Moniz
4 February 1999 by Philippe Pipeaux, residing at Mensdorf                and Júlia Rôla Roque, of the Lisbon Bar, with an adress for
(Luxembourg), represented by Lucas Vogel, lawyer, of                     service in Luxembourg at the chambers of Aloyse May, 31
187 Chaussée de la Hulpe, Brussels.                                      Grand-rue.


title: Case T-228/99: Action brought on 12 October 1999 by Westdeutsche Landesbank Girozentrale against the Commission of the European Communities

text:
C 6/28                 EN                    Official Journal of the European Communities                                       8.1.2000
— Moreover, the Commission made inadequate findings of                  Pleas in law and main arguments
     fact and failed to comply with its obligation to state
     reasons within the meaning of Article 253 EC.
                                                                        The application is based on the following grounds:
     Infringement of substantive law
— The Commission applied the concept of reduction of                    The Commission, after its resignation, no longer had jurisdic-
     capacity within the meaning of Article 10a(2)(c) of Direc-         tion to adopt the decision, since its powers were limited to
     tive 90/684/EEC(1) wrongly in law and contrary to its own          current and urgent business.
     previous decision-making practice as meaning a restriction
     of production. The provision is correctly to be understood,
     however, as meaning that only the technical installations
     of a shipyard are to be restricted, regardless of actual           On 8 July 1999, the date when the decision was discussed and
     production. Moreover, by the departure from previous               voted on, the Commission was irregularly composed, since
     practice the principles of protection of legitimate expec-         Commission President Santer and Commissioner Bonino
     tations, equal treatment and proportionality were                  should no longer have been allowed to take part in the
     infringed.                                                         session, following their election to the European Parliament.
                                                                        In addition, Commissioner Bangemann had been wrongly
                                                                        ‘suspended’ by the Commission and excluded from the session.
— In addition, the Commission unlawfully based its decision
     on the total amount of aid approved, without ascertaining
     the amount of aid actually granted.
                                                                        The Commission infringed the applicant’s right to a fair
                                                                        hearing by failing to give it an opportunity to comment either
(1) Council Directive 90/684/EEC of 21 December 1990 on aid to          on the report of the Commission’s advisers, first consulting
    shipbuilding (OJ L 380 of 31.12.1990, p. 27), as amended by         limited, London, which was an essential basis of the reasons
    Council Directive 92/68/EEC of 20 July 1992 (OJ L 219 of            for the decision, or on the comments made by Bundesverband
    4.8.1992, p. 54).                                                   deutscher Banken.
                                                                        The Commission infringed its obligation to state reasons under
                                                                        Article 253 EC, since it did not explain the calculation it used
                                                                        of the return on the Wohnungsbauförderungsanstalt (‘Wfa’)
                                                                        assets, nor showed that the other elements of Article 87(1) EC
                                                                        were present.
Action brought on 12 October 1999 by Westdeutsche
Landesbank Girozentrale against the Commission of the
                    European Communities                                The decision infringes Article 87(1) EC because it extends the
                                                                        concept of aid too far, by applying the principle of the capital
                        (Case T-228/99)                                 investor acting in market-economy conditions, developed for
                                                                        cases of restructuring, without differentiation to the applicant,
                                                                        which is a profitable undertaking. In the decision the Com-
                          (2000/C 6/51)                                 mission moreover requires for the first time that the undertak-
                                                                        ing must achieve an average return for the sector rather than
                                                                        merely a reasonable return.
                  (Language of the case: German)
An action against the Commission of the European Communi-               The Commission overlooks, contrary to its previous decision-
ties was brought before the Court of First Instance of the              making practice and to the case-law of the Court of Justice, the
European Communities on 12 October 1999 by Westdeutsche                 fact that private investors too are not focused exclusively on
Landesbank Girozentrale, of Düsseldorf, Germany, represented            achieving returns. The requirement of an at least average return
by Dr Frank Montag, of Freshfields Deringer, Cologne, with an           discriminates against public undertakings and infringes the
address for service in Luxembourg at the Chambers of Aloyse             guarantee of the right to property in Article 295 EC.
May, 31 Grand’Rue.
The applicant claims that the Court should:                             The Commission applies the principle — which it misunder-
                                                                        stands — of the capital investor acting in market-economy
1. Annul Commission Decision C(1999) 2265 fin. of 8 July                conditions incorrectly and arrives at illusory figures for returns
     1999 concerning a measure taken by the Federal Republic            for the Wfa assets.
     of Germany in favour of Westdeutsche Landesbank Giro-
     zentrale;
                                                                        The Commission wrongly assumes that the risk profile of the
2. Order the Commission to pay the costs.                               Wfa assets is comparable economically with share capital.
 ---pagebreak--- 8.1.2000              EN                      Official Journal of the European Communities                                     C 6/29
The Commission states, as sole reason for the rate of return it          — annul the decisions appointing two other persons to the
regards as usual in the market on the part of the Wfa assets                 posts of Head of the English Language Division and Legal
which is economically usable for the applicant, that in its                  Adviser;
Crédit Lyonnais decision of 1995 it likewise regarded a return
of 12 % after tax as reasonable. The Crédit Lyonnais decision            — order the Council to pay the costs.
is not applicable to the present case, however, because Crédit
Lyonnais was a case of restructuring.
                                                                         Pleas in law and main arguments
The Commission confuses return on equity from the point of
view of the undertaking with return on investment from the
point of view of the capital investor, and wrongly assumes               The applicant contests the appointing authority’s refusal to
that expectations as to returns are in principle to be understood        accept his applications for two grade LA 3 posts.
as net return.
                                                                         In support of his claims, he pleads infringement of:
The rate of return of 12 % after tax for capital investments
used by the Commission is not tenable. The Commission has
confused pre-tax and after-tax figures.                                  — Articles 29 and 45 of the Staff Regulations;
The transfer of Wfa to Westdeutsche Landesbank Girozentrale              — the promotions procedure;
does not have any special features which could justify an
additional 1.5 % on top of the 12 % after tax.                           — the principles of equal treatment and career progression.
The Commission wrongly assumes that the applicant also has               Lastly, the applicant pleads misuse of powers in the present
to pay a consideration for the part of the Wfa assets which is           case.
not usable for it.
Finally, the Commission wrongly fails to take account of the
synergy effects created by the merger of the two credit
institutions in calculating the amount of the consideration to
be paid.
                                                                         Action brought on 12 October 1999 by Colin Joynson
                                                                           against the Commission of the European Communities
                                                                                (Case T-231/99)
Action brought on 13 October 1999 by Hans Mc Auley
         against the Council of the European Union
                                                                                (2000/C 6/53)
                        (Case T-230/99)
                                                                                (Language of the case: English)
                          (2000/C 6/52)
                                                                         An action against the Commission of the European Communi-
                   (Language of the case: French)                        ties was brought before the Court of First Instance of the
                                                                         European Communities on 12 October 1999 by Colin Joyn-
                                                                         son, represented by Beeket Bedford, of the Middle Temple
An action against the Council of the European Union was                  and by Messrs Ferdinand Kelly, Solicitors, 21 Bennetts Hill,
brought before the Court of First Instance of the European               Birmingham, B2 5QP, United Kingdom.
Communities on 13 October 1999 by Hans Mc Auley, residing
at Wezembeek-Oppem (Belgium), represented by Jean-Noël
Louis, Greta-Françoise Parmentier and Véronique Peere, of the            The applicant claims that the Court should:
Brussels Bar, with an address for service in Luxembourg at the
offices of Fiduciaire Myson SARL, 30 Rue de Cessange.                    — annul the decision of the Commission in Case
                                                                             IV/36.081/F3 — Bass dated 16 June 1999;
The applicant claims that the Court should:
                                                                         — declare that the Commission is required under Article 233
— annul the Council’s decisions rejecting his applications for               of the Treaty establishing the European Community to
    the grade LA 3 posts of Head of the English Language                     take the necessary measures to comply with the judgment
    Division and Legal Adviser in that division;                             to be delivered;


title: Case C-430/01: Reference for a preliminary ruling by the Landesgericht für Zivilrechtsachen Vienna by order of that court of 12 October 2001 in the case of Prof. Monika Herbstrith v Republic of Austria

text:
C 109/18              EN                   Official Journal of the European Communities                                        4.5.2002
Appeal brought on 6 June 2001 by G. Ojha against the                  Reference for a preliminary ruling by the Landesgericht
judgment delivered on 6 arch 2001 by the First Chamber                für Zivilrechtsachen Vienna by order of that court of
of the Court of First Instance of the European Communi-               12 October 2001 in the case of Prof. Monika Herbstrith v
ties in Case T-77/99 Ojha v Commission of the European                                      Republic of Austria
                         Communities
                                                                                (Case C-430/01)
                       (Case C-284/01 P)
                                                                                (2002/C 109/31)
                        (2002/C 109/29)
                                                                      Reference has been made to the Court of Justice of the
                                                                      European Communities by order of the Landesgericht für
                                                                      Zivilrechtssachen Wien (Vienna Higher Civil Court) of
An appeal against the judgment delivered on 6 March 2001              12 October 2001 which was received at the Court Registry on
by the First Chamber of the Court of First Instance of the            6 November 2001, for a preliminary ruling in the case of Prof.
European Communities in Case T-77/99 (1)Ojha v Commission             Monika Herbstrith v Republic of Austria on the following
of the European Communities was brought before the Court              questions:
of Justice of the European Communities on 6 June 2001 by
G. Ojha. By order of 22 November 2001 the Court of Justice            1.    Did the conduct described above, viz. the failure to
(First Chamber) dismissed the appeal and ordered Mr Ojha to                 appoint a candidate despite her professional qualifi-
bear his own costs.                                                         cations, infringe a provision of directly applicable Com-
                                                                            munity law and if so, which provision?
                                                                      2.    If the answer to question 1 is in the affirmative:
(1) OJ C 161 of 2.6.2002, p. 16.
                                                                            Does the infringed provision of directly applicable Com-
                                                                            munity law give the plaintiff in the original proceedings a
                                                                            legal right?
                                                                      3.    If the answer to question 2 is in the affirmative:
                                                                            Does the request for a preliminary ruling provide the
                                                                            European Court of Justice with all the information it needs
                                                                            to determine whether in the circumstances described as
Appeal brought on 23 July 2001 by Smanor SA and                             to the original proceedings the national body clearly and
Monique and Hubert Ségaud against the order made on                         significantly exceeded its discretionary powers, or does it
4 July 2001 by the First Chamber of the Court of First                      leave it to the Austrian court requesting the preliminary
Instance of the European Communities in Case T-123/01                       ruling to answer this question?
between the parties bringing the present appeal and the
        Commission of the European Communities
                       (Case C-291/01 P)
                        (2002/C 109/30)                               Reference for a preliminary ruling by the Verwaltungsge-
                                                                      richt Frankfurt am Main by order of 12 November 2001
                                                                      in the case of Hilde Schönheit against the City of Frankfurt
                                                                                am Main
An appeal against the order made on 4 July 2001 by the First                                    (Case C-4/02)
Chamber of the Court of First Instance of the European
Communities in Case T-123/01 between the parties bringing
the present appeal and the Commission of the European                                         (2002/C 109/32)
Communities was brought before the Court of Justice of the
European Communities on 23 July 2001 by Smanor SA and
Monique and Hubert Ségaud. By order of 22 November 2001
the Court of Justice (First Chamber) dismissed the appeal and         Reference has been made to the Court of Justice of the
ordered each of the applicants to bear their own costs.               European Communities by order of the Verwaltungsgericht
                                                                      (Administrative Court) Frankfurt am Main of 12 November
                                                                      2001, received at the Court Registry on 9 January 2002, for a
                                                                      preliminary ruling in the case of Hilde Schönheit against the
                                                                      City of Frankfurt am Main on the following questions: