title: Action brought on 7 May 1998 by the Commission of the European Communities against the French Republic (Case C-169/98)

text:
5.9.98                EN                  Official Journal of the European Communities                                   C 278/11
                  ORDER OF THE COURT                                 Action brought on 7 May 1998 by the Commission of the
                                                                         European Communities against the French Republic
                        of 7 July 1998
                                                                                (Case C-169/98)
in Joined Cases C-405/96 to C-408/96 (reference for a
preliminary ruling from the Tribunal d'Instance de Saint-                                   (98/C 278/20)
Denis de la ReÂunion): SocieÂteÂ Beton Express and Others v.
            Direction ReÂgionale de la ReÂunion (1)
(Article 104(3) of the Rules of Procedure Ð Manifestly               An action against the French Republic was brought before
                      identical question)                            the Court of Justice of the European Communities on
                                                                     7 May 1998 by the Commission of the European
                        (98/C 278/19)                                Communities, represented by Peter Hillenkamp, Legal
                                                                     Adviser, and HeÂleÁne Michard, of its Legal Service, acting
                                                                     as Agents, with an address for service in Luxembourg at
                                                                     the office of Carlos Gómez de la Cruz, Wagner Centre,
                (Language of the case: French)                       Kirchberg.
                                                                     The Commission of the European Communities claims
  (Provisional translation; the definitive translation will be       that the Court should:
          published in the European Court Reports)
                                                                     Ð declare that, in applying the general social
                                                                         contribution (GSC) to the income from employment or
In Joined Cases C-405/96 to C-408/96: reference to the
                                                                         income substitution benefit of workers who are
Court under Article 177 of the EC Treaty from the
                                                                         resident in France but who, by virtue of Regulation
Tribunal d'Instance de Saint-Denis de la ReÂunion (France)
                                                                         (EEC) No 1408/71 (1), are not subject to French social
for a preliminary ruling in the proceedings pending before
                                                                         security legislation, France has failed to fulfil its
that court between SocieÂteÂ Beton Express (Case C-405/
                                                                         obligations under Articles 48 to 52 of the EC Treaty
96), SocieÂteÂ Nouvelle de Concassage (Case C-406/96),
                                                                         and Article 13 of that Regulation,
SocieÂteÂ Bourbon LumieÁre (Case C-407/96) and SocieÂteÂ
Ouest Concassage (Case 408/96) and Direction ReÂgionale
des Douanes de la ReÂunion Ð Intervener: ReÂgion ReÂu-
nion, on the interpretation of Articles 9, 12 and 95 of the          Ð order the French Republic to pay the costs.
EC Treaty Ð the Court, composed of: G. C. Rodríguez
Iglesias, President, C. Gulmann, H. Ragnemalm, M.
Wathelet and R. Schintgen, Presidents of Chambers, G. F.
Mancini, J. C. Moitinho de Almeida, P. J. G. Kapteyn, J. L.          Pleas in law and main arguments adduced in support:
Murray, D. A. O. Edward (Rapporteur), J.-P. Puissochet,
G. Hirsch, P. Jann, L. Sevón and K. M. Ioannou, Judges;
A. Saggio, Advocate-General; R. Grass, Registrar, made an            According to the Commission, the levying of the general
order on 7 July 1998, the operative part of which is as              social contribution (hereinafter the GSC') on employees'
follows:                                                             income from employment or income substitution benefit
                                                                     derived from professional activity in another Member
                                                                     State constitutes a twofold social levy contrary both to the
                                                                     provisions of Regulation (EEC) No 1408/71, and
Council Decision 89/688/EEC of 22 December 1989                      Article 13 thereof in particular, and to Articles 48 to 52 of
concerning the dock dues in the French overseas                      the Treaty concerning freedom of movement for workers
departments must be interpreted as meaning that it                   within the Community.
precludes exemptions which are of a general or systematic
nature and which are therefore liable to lead to the
reintroduction of a tax having an effect equivalent to a
customs duty. On the other hand, Decision 89/688/EEC                 The Commission points out that, according to the
authorises exemptions which are necessary, proportional              consistent case-law of the Court of Justice, the designation
and precisely determined and which fulfil the strict                 of a tax, charge, levy, contribution or fee must be
conditions laid down by Article 2(3) of that Decision, as            examined in the light of the objective characteristics of the
interpreted in the light of the limits provided for in               levy concerned, irrespective of the designation given to it
Article 226 of the EC Treaty.                                        by the Member State in question.
(1) OJ C 54, 22.2.1997.
                                                                     In this case, account should be taken, first, of the purpose
                                                                     and use made of the levy and, second, of the arrangements
                                                                     for the collection and charging of the contribution in
                                                                     question.
 ---pagebreak--- C 278/12               EN                      Official Journal of the European Communities                                      5.9.98
It is clear from the French legislation that the GSC is                   Appeal brought on 5 June 1998 by Salzgitter AG
intended to contribute to the financing of all the branches               (formerly Preussag Stahl AG) against the judgment
of the general social security scheme in France. Article 4                delivered on 31 March 1998 by the Third Chamber,
of Regulation (EEC) No 1408/71 covers all the legislation                 Extended Composition, of the Court of First Instance of
relating to the branches of social security listed in                     the European Communities in Case T-129/96 between
paragraph 1. The purpose and use made of the GSC thus                     Preussag Stahl AG, supported by the Federal Republic of
lead the Commission to take the view that it constitutes a                Germany, and the Commission of the European
social security contribution which comes within the scope                                         Communities
of that Regulation.                                                                            (Case C-210/98 P)
                                                                                (98/C 278/21)
The Commission considers that levying the GSC on
income from employment and income substitution benefit
                                                                          An appeal against the judgment delivered on 31 March
in the case of persons residing in France but working in
                                                                          1998 by the Third Chamber, Extended Composition, of
another Member State undermines the principle that a
                                                                          the Court of First Instance of the European Communities
single legislation is applicable, in that the GSC, which is
                                                                          in Case T-129/96 between Preussag Stahl AG, supported
intended to finance social security schemes, is levied on
                                                                          by the Federal Republic of Germany, and the Commission
incomes after deduction of all the social contributions due
                                                                          of the European Communities was brought before the
in the State of employment, the only State which is
                                                                          Court of Justice of the European Communities on 5 June
competent in matters of social security for employed
                                                                          1998 by Salzgitter AG (formerly Preussag Stahl AG),
persons under Regulation (EEC) No 1408/71.
                                                                          represented by Jochim Sedemund, Rechtsanwalt, of Messrs
                                                                          Deringer, Tessin, Herrmann & Sedemund, Berlin, with an
                                                                          address for service in Luxembourg at the Chambers of
Finally, the Commission lays emphasis on the importance                   Aloyse May, 31 Grand-Rue, L-1671 Luxembourg.
and urgency of deciding, as a matter of principle, whether
it is compatible with Regulation (EEC) No 1408/71 to levy
                                                                          The appellant claims that the Court should:
the GSC on employment income or income substitution
benefit derived from employment undertaken in another
Member State by persons resident in France for tax                        Ð set aside the judgment delivered on 31 March 1998
purposes, where social contributions have already been                        by the Court of First Instance of the European
deducted from that income. Although the French                                Communities in Case T-129/96 Preussag Stahl AG v.
authorities announced that they had ordered the                               Commission (1),
suspension of the levy in the case of frontier workers, it
should be borne in mind that this is a temporary and
provisional measure which can, by its very nature, be                     Ð annul Commission Decision 96/544/ECSC of 29 May
altered at the discretion of the competent national                           1996 concerning State aid to Walzwerk Ilsenburg
authority.                                                                    GmbH (OJ L 233, 14.9.1996, p. 24),
                                                                          Ð order the Commission to pay the costs.
The reasons given by the French authorities for that
suspension were that amendments were being prepared to
the conditions for applying the GSC. In the final analysis,               Pleas in law and main arguments adduced in support:
the inescapable conclusion in these proceedings is that the
French authorities have taken no steps to provide a
satisfactory response to the specific and clearly delineated              Ð The decision of the Court of First Instance is based
objections raised by the Commission. The application of                       solely on the finding that the Commission ceased
the GSC none the less affects a large number of migrant                       ratione temporis to be competent, after 31 December
workers residing in France, of whom frontier workers are                      1994, to adopt a decision concerning aid to Walzwerk
just one example, who have thus for many years been in a                      Ilsenburg. Neither the Treaty nor the Steel Aids Code
position of legal uncertainty which is incompatible with                      provides any basis for such a conclusion, which the
the principles of Community law.                                              Court of First Instance purports to infer from the
                                                                              preventive nature of the procedure for examining
                                                                              proposed grants of aid and from certain material
                                                                              deadlines for payments of regional aid. If the Court of
The Commission does not therefore consider that                               First Instance were correct in its view that Article 4(c)
suspension of the levying of the GSC has ended or                             of the ECSC Treaty precludes any subsequent material
remedied the breach of Community law described by it.                         assessment of aid which has already been granted, that
                                                                              would mean that Article 6(4) of the Fifth Steel Aids
                                                                              Code (2) is unlawful. It is clear from that illogical
(1) OJ, English Special Edition, First Series II, p. 416.
                                                                              result that the legislature must have considered that
                                                                              the Commission remains obliged, and thus competent,
                                                                              to undertake a material assessment of a grant of aid
                                                                              even after that aid has been paid over to its recipient,


title: Case C-78/99: Action brought on 3 March 1999 by the Commission of the European Communities against the French Republic

text:
5.6.1999              EN                    Official Journal of the European Communities                                        C 160/3
bringing proceedings, the information sheets are still incom-          The Commission terminated the subsidy contract concluded
plete for 27,1 % of the proposed sites; the information has not        with the defendants as provided for the contract, for failure to
been transmitted with the standard form information sheet              implement the project, and is demanding partial reimburse-
EUR 15 for 4 % of the proposed sites; and no standard                  ment of the advance paid plus interest at the contractual rate.
information sheet with scientific data has been transmitted in
respect of 67,4 % of the proposed sites.
(1) OJ L 206, 22.7.1992, p. 7.
                                                                       Action brought on 3 March 1999 by the Commission of
                                                                        the European Communities against the French Republic
                                                                                (Case C-78/99)
                                                                                (1999/C 160/06)
Action brought on 3 March 1999 by the Commission of
the European Communities against 1. Oder-Plan Architek-                An action against the French Republic was brought before the
tur GmbH, 2. NCC Siab Bau GmbH and 3. Esbensen                         Court of Justice of the European Communtities on 3 March
                     Consulting Engineers                              1999 by the Commission of the European Communities,
                                                                       represented by Christina Tufvesson, Legal Adviser, and Bernard
                                                                       Mongin, of its Legal Service, acting as Agents, with an address
                         (Case C-77/99)                                for service in Luxembourg at the office of Carlos Gómez de la
                                                                       Cruz, Wagner Centre, Kirchberg.
                        (1999/C 160/05)
                                                                       The Commission of the European Communities claims that
                                                                       the Court should:
An action against 1. Oder-Plan Architktur GmbH, 2. NCC Siab
Bau GmbH and 3. Esbensen Consulting Engineers was brought              — declare that, by failing to adopt the laws, regulations and
before the Court of Justice of the European Communities                    administrative measures necessary in order to comply with
on 3 March 1999 by the Commission of the European                          European Parliament and Council Directive 95/26/EC of
Communities, represented by Richard Wainwright, Principal                  29 June 1995 amending Directives 77/780/EEC and
Legal Adviser in the Legal Service of the European Commission              89/646/EEC in the field of credit institutions, Directives
and Karin Schreyer, a national civil servant seconded to the               73/239/EEC and 92/49/EEC in the field of non-life
Legal Service of the Commission, with an address for service               insurance, Directives 79/267/EEC and 92/96/EEC in the
in Luxembourg at the Chambers of Carlos Gómez de la Cruz,                 field of life assurance, Directive 93/22/EEC in the field of
a Member of the Legal Service of the Commission, Wagner                    investment firms and Directive 85/611/EEC in the field of
Centre, Kirchberg, Luxembourg.                                             undertakings for collective investment in transferable
                                                                           securities (Ucits), with a view to reinforcing prudential
                                                                           supervision (1), alternatively by omitting to communicate
The applicant claims that the Court should:                                the measures necessary to comply therewith, the French
                                                                           Republic has failed to fulfil its obligations under that
                                                                           directive,
— order the defendants jointly and severally to pay the
    European Commission 54 510 EUR plus interest in the
                                                                       — order the French Republic to pay the costs.
    amount of 20 798.70 EUR for the period from 1 January
    1993 to 15 January 1999,
                                                                       Pleas in law and main arguments
— order the defendants jointly and severally to pay the
    European Commission interest on the principal sum of
    54 510 EUR at the rate used by the European Monetary               The mandatory nature of the provisions of the third paragraph
    Cooperation Fund plus two per cent, and                            of Article 189 and of the first paragraph of Article 5 of the EC
                                                                       Treaty is such as to oblige Member States to which directives
                                                                       are addressed to adopt the measures necessary in order to
— order the defendants jointly and severally to pay the costs          transpose those directives into their national legal order within
    of the action.                                                     the time-limit prescribed therein. The time-limit in question
                                                                       expired on 18 July 1996 but the French Republic has not
                                                                       adopted the necessary measures.
Pleas in law and main arguments
                                                                       (1) OJ L 168, 18.7.1995, p. 7.
The Court has jurisdiction on the basis of an arbitration clause
concluded in 1992.


title: Case C-195/12: Judgment of the Court (Fourth Chamber) of 26 September 2013 (request for a preliminary ruling from the Cour constitutionnelle — Belgium) — Industrie du bois de Vielsalm & Cie (IBV) SA v Région wallonne (Directive 2004/8/EC — Scope — Cogeneration and high efficiency cogeneration — Article 7 — Regional support scheme providing for the grant of ‘green certificates’ to cogeneration plants — Grant of a larger number of green certificates to cogeneration plants processing principally forms of biomass other than wood or wood waste — Principle of equality and non-discrimination — Articles 20 and 21 of the Charter of Fundamental Rights of the European Union)

text:
               23.11.2013

               EN

               Official Journal of the European Union

               C 344/28

         Judgment of the Court (Fourth Chamber) of 26 September 2013 (request for a preliminary ruling from the Cour constitutionnelle — Belgium) — Industrie du bois de Vielsalm & Cie (IBV) SA v Région wallonne
   (Case C-195/12) (1)

   (Directive 2004/8/EC - Scope - Cogeneration and high efficiency cogeneration - Article 7 - Regional support scheme providing for the grant of ‘green certificates’ to cogeneration plants - Grant of a larger number of green certificates to cogeneration plants processing principally forms of biomass other than wood or wood waste - Principle of equality and non-discrimination - Articles 20 and 21 of the Charter of Fundamental Rights of the European Union)
   2013/C 344/48
   Language of the case: French

      Referring court

   Cour constitutionnelle

      Parties to the main proceedings

      Applicant: Industrie du bois de Vielsalm & Cie (IBV) SA

      Defendant: Région wallonne

      Re:

   Request for a preliminary ruling — Cour constitutionelle — Interpretation of Article 7 of Directive 2004/8/EC of the European Parliament and of the Council of 11 February 2004 on the promotion of cogeneration based on a useful heat demand in the internal energy market and amending Directive 92/42/EEC (OJ 2004 L 52, p. 50) — Interpretation of Articles 2 and 4 of Directive 2001/77/EC of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market (OJ 2001 L 283, p. 33) — Interpretation of Article 22 of Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ 2009 L 140, p. 16) — Interpretation of Article 6 TEU and Articles 20 and 21 of the Charter of Fundamental Rights of the European Union — Financial support schemes limited to high-efficiency cogeneration plants — Obligation, authorisation or prohibition of excluding from support cogeneration plants using principally wood or wood waste — Conformity of legislation with the principle of equal treatment

      Operative part of the judgment

               1.

               Article 7 of Directive 2004/8/EC of the European Parliament and of the Council of 11 February 2004 on the promotion of cogeneration based on a useful heat demand in the internal energy market and amending Directive 92/42/EEC must be interpreted as meaning that its scope is not limited solely to cogeneration plants which are high efficiency cogeneration plants within the meaning of that directive.

               2.

               In the present state of European Union law, the principle of equal treatment and non-discrimination laid down in particular in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union does not preclude the Member States, when introducing national support schemes for cogeneration and electricity production from renewable energy sources, such as those referred to in Article 7 of Directive 2004/8 and Article 4 of Directive 2001/77/EC of the European Parliament and of the Council of 27 September 2001 on the promotion of electricity produced from renewable energy sources in the internal electricity market, from providing for an enhanced support measure such as that at issue in the main proceedings capable of benefiting all cogeneration plants principally using biomass with the exclusion of cogeneration plants principally using wood and/or wood waste.

      (1)  OJ C 200, 7.7.2012.


title: Case T-233/03: Action brought on 13 June 2003 by Noel McGing against the Commission of the European Communities

text:
4.10.2003                 EN                          Official Journal of the European Union                                        C 239/15
Pleas in law and main arguments                                               Action brought on 13 June 2003 by Noel McGing against
                                                                                the Commission of the European Communities
The applicant invokes the same pleas in law as in Case T-218/                                             (Case T-233/03)
03 (1).
                                                                                (2003/C 239/28)
( 1) See p. 9 of this Official Journal.
                                                                                (Language of the case: English)
                                                                              An action against the Commission of the European Communi-
                                                                              ties was brought before the Court of First Instance of the
                                                                              European Communities on 13 June 2003 by Noel McGing,
                                                                              Killybegs, (Ireland), represented by P. Gallagher and A. Collins,
                                                                              Barristers, and D. Barry, Solicitor.
Action brought on 13 June 2003 by Adrian McClennaghan
   against the Commission of the European Communities
                                                                              The applicant claims that the Court should:
                             (Case T-232/03)
                                                                              —      annul the decision contained in Article 2 of Commission
                                                                                Decision of 4 April 2003 on the requests received by the
                            (2003/C 239/27)                                          Commission to increase in MAGP IV objectives to take
                                                                                into account improvements on safety, navigation at sea,
                                                                                hygiene, product quality and working conditions for
                      (Language of the case: English)                                vessels of more than 12 m in length overall notified
                                                                                under document number C(2003) 1113 to reject a safety
                                                                                capacity application for a proposed new RSW vessel,
                                                                                MFV Olgarry;
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                    —      order the Commission to pay the costs of these proceed-
                                                                                ings.
European Communities on 13 June 2003 by Adrian McClen-
naghan, Greencastle, (Ireland), represented by P. Gallagher and
A. Collins, Barristers, and D. Barry, Solicitor.
                                                                              Pleas in law and main arguments
The applicant claims that the Court should:
                                                                              The applicant invokes the same pleas in law as in Case T-218/
                                                                              03 (1).
—      annul the decision contained in Article 2 of Commission
       Decision of 4 April 2003 on the requests received by the
       Commission to increase in MAGP IV objectives to take                   (1 ) See p. 9 of this Official Journal.
       into account improvements on safety, navigation at sea,
       hygiene, product quality and working conditions for
       vessels of more than 12 m in length overall notified
       under document number C(2003) 1113 to reject a safety
       capacity application in respect of the MFV Northern Celt;
—      order the Commission to pay the costs of these proceed-                Action brought on 13 June 2003 by Eamon McHugh
       ings.                                                                     against the Commission of the European Communities
                                                                                (Case T-234/03)
Pleas in law and main arguments                                                                           (2003/C 239/29)
                                                                                (Language of the case: English)
The applicant invokes the same pleas in law as in Case T-218/
03 (1).
                                                                              An action against the Commission of the European Communi-
( 1) See p. 9 of this Official Journal.                                       ties was brought before the Court of First Instance of the
                                                                              European Communities on 13 June 2003 by Eamon McHugh,
                                                                              Killybegs, (Ireland), represented by P. Gallagher and A. Collins,
                                                                              Barristers, and D. Barry, Solicitor.


title: Order of the President of the Court of 23 February 2001 in Case C-445/00 R: Republic of Austria v Council of the European Union (Applications for interim measures — System of ecopoints for heavy goods vehicles transiting through Austria — Regulation (EC) No 2012/2000 — Suspension of application — Urgency)

text:
C 200/34                EN                      Official Journal of the European Communities                                          14.7.2001
parties to the proceedings being Council of the European                   1.    The appeal is dismissed.
Union (Agents: J. Carbery and G. Ramos Ruano), Commission
of the European Communities (Agents: T. van Rijn and                       2.    Mr Peter Reichert is ordered to pay the costs.
J. Guerra Fernández), Asociación Nacional de Armadores de
Buques Congeladores de Pesca de Merluza (Anamer), estab-                   (1) OJ C 233 of 12.8.2000.
lished in Vigo, Asociación Nacional de Armadores de Buques
Congeladores de Pesquerı́as Varias (Anavar), established in
Vigo, and Asociación de Sociedades Pesqueras Españolas
(ASPE), established in Vigo — the Court (Fourth Chamber),
composed of A. La Pergola, President of Chamber,
D.A.O. Edward, C.W.A. Timmermans (Rapporteur), Judges;
F.G. Jacobs, Advocate General; R. Grass, Registrar, made an
order on 1 February 2001, the operative part of which is as                       ORDER OF THE PRESIDENT OF THE COURT
follows:
                                                                                of 23 February 2001
1.    The appeal is dismissed.
2.    Area Cova and Others shall pay the costs.                            in Case C-445/00 R: Republic of Austria v Council of the
                                                                                European Union (1)
(1) OJ C 314 of 30.10.1999.
                                                                           (Applications for interim measures — System of ecopoints
                                                                           for heavy goods vehicles transiting through Austria —
                                                                           Regulation (EC) No 2012/2000 — Suspension of application
                                                                                — Urgency)
                                                                                (2001/C 200/62)
                    ORDER OF THE COURT
                                                                                (Language of the case: German)
                          (First Chamber)
                                                                           (Provisional translation; the definitive translation will be published
                        of 8 February 2001                                                     in the European Court Reports)
in Case C-238/00 P: Peter Reichert v European Parlia-                      In Case C-445/00 R: Republic of Austria (Agent: H. Dossi) v
                               ment (1)                                    Council of the European Union (Agents: A. Lopes Sabino and
                                                                           G. Houttuin), supported by Federal Republic of Germany
(Officials — Article 4 of Annex VII to the Staff Regulations               (Agent: W.-D. Plessing, assisted by J. Sedemund and T. Lübbig)
— Expatriation allowance — Place where the main pro-                       and by Commission of the European Communities (Agents:
fessional activity is pursued — Appeal manifestly                          M. Wolfcarius and C. Schmidt) — application for suspension
                             unfounded)                                    of application of Council Regulation (EC) No 2012/2000 of
                                                                           21 September 2000 amending Annex 4 to Protocol No 9 to
                          (2001/C 200/61)                                  the 1994 Act of Accession and Regulation (EC) No 3298/94
                                                                           with regard to the system of ecopoints for heavy goods
                                                                           vehicles transiting through Austria (OJ 2000 L 241, p. 18),
                   (Language of the case: German)                          and for interim measures — the President of the Court of
                                                                           Justice made an order on 23 February 2001, the operative part
                                                                           of which is as follows:
(Provisional translation; the definitive translation will be published
                                                                           1.    The application of Article 2(1) of Council Regulation (EC)
                   in the European Court Reports)
                                                                                No 2012/2000 of 21 September 2000 amending Annex 4
                                                                                to Protocol No 9 to the 1994 Act of Accession and Regulation
In Case 238/00 P: Peter Reichert, member of the temporary                        (EC) No 3298/94 with regard to the system of ecopoints for
staff of the Socialist Group of the European Parliament,                         heavy goods vehicles transiting through Austria is suspended
represented by D. Rogalla, Rechtsanwalt — appeal against the                     pending delivery of the judgment in the main proceedings.
judgment of the Court of First Instance of the European
Communities, Single Judge, of 13 April 2000, in Case T-18/98               2.    The remainder of this application is dismissed.
Reichert v Parliament [2000] ECR II-309, seeking to have that
                                                                           3.    Costs are reserved.
judgment set aside, the other party to the proceedings being
European Parliament (Agents: Y. Pantalis and M. Berger) — the
Court (First Chamber), composed of M. Wathelet, President of               (1) OJ C 45 of 10.2.2001.
Chamber, P. Jann (Rapporteur) and L. Sevón, Judges; P. Leger,
Advocate General; R. Grass, Registrar, made an order on
18 February 2001, the operative part of which is as follows:


title: Judgment of the Court (First Chamber) of 7 July 2005 in Case C-374/03 (Reference for a preliminary ruling Verwaltungsgericht): Gaye Gürol v Bezirksregierung Köln (EEC-Turkey Association Agreement — Article 9 of Decision No 1/80 of the Association Council — Direct effect — Access to education for children of a Turkish worker duly registered as belonging to the workforce — Children living with their parents — Education grant)

text:
               17.9.2005

               EN

               Official Journal of the European Union

               C 229/3

      JUDGMENT OF THE COURT

   (First Chamber)
   of 7 July 2005
   in Case C-374/03 (Reference for a preliminary ruling Verwaltungsgericht): Gaye Gürol v Bezirksregierung Köln (1)

   (EEC-Turkey Association Agreement - Article 9 of Decision No 1/80 of the Association Council - Direct effect - Access to education for children of a Turkish worker duly registered as belonging to the workforce - Children living with their parents - Education grant)
   (2005/C 229/06)
   Language of the case: German
   In Case C-374/03, reference for a preliminary ruling under Article 234 EC, from the Verwaltungsgericht Sigmaringen (Germany), made by decision of 31 July 2003, received at the Court on 8 September 2003, in the proceedings Gaye Gürol and Bezirksregierung Köln, the Court (First Chamber), composed of P. Jann, President of the Chamber, K. Lenaerts, J.N. Cunha Rodrigues (Rapporteur), E. Juhász and M. Ilešič, Judges; L.A. Geelhoed, Advocate General, M.-F. Contet, Principal Administrator, has given a judgment on 7 July 2005, the operative part of which is as follows:

               1.

               The first sentence of Article 9 of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association, adopted by the Association Council created under the agreement establishing an association between the European Economic Community and Turkey, has direct effect in the Member States.

               2.

               The condition of residing with parents in accordance with the first sentence of Article 9 is met in the case of a Turkish child who, after residing legally with his parents in the host Member State, establishes his main residence in the place in the same Member State in which he follows his university studies, while declaring his parents' home to be his secondary residence only.

               3.

               The second sentence of Article 9 of Decision No 1/80 has direct effect in the Member States. That provision guarantees Turkish children a non-discriminatory right of access to education grants, such as that provided for under the legislation at issue in the main proceedings, that right being theirs even when they pursue higher education studies in Turkey.

      (1)  OJ C 304 of 13.12.2003.


title: Case C-194/99 P: Appeal brought on 25 May 1999 by Thyssen Stahl AG against the judgment delivered on 11 March 1999 by the Court of First Instance of the European Communities (Second Chamber, Extended Composition) in Case T-141/94 Thyssen Stahl AG v Commission of the European Communities

text:
C 299/4                 EN                   Official Journal of the European Communities                                      16.10.1999
     that the ‘normal competition’ protected by Article 65(1) of        2. Annul Articles 1, 3 and 4 of Commission Decision
     the ECSC Treaty cannot be the same competition as that                 C(94)321 final of 16 February 1994 relating to a proceed-
     protected by Article 85(1) of the EC Treaty. It was for that           ing pursuant to Article 65 of the ECSC Treaty concerning
     reason wrong in law simply to classify every exchange of               agreements and concerted practices engaged in by Euro-
     information as a restriction of competition prohibited                 pean producers of beams, in so far as those articles have
     under Article 65(1) of the ECSC Treaty.                                not already been annulled by the judgment of the Court of
                                                                            First Instance of 11 March 1999 in Case T-141/94;
— Infringement of Article 65 of the ECSC Treaty in regard to
     the assessment of the information exchange: the assess-            3. Order the Commission to pay the costs of the proceedings
     ment of the information exchange as a separate constituent             at first instance and those of the present appeal.
     feature of conduct in restraint of competition for the
     purposes of Article 65 of the ECSC Treaty constituted a
     misconstruction of that article. Under Article 65 of the
                                                                        Pleas in law and main arguments
     ECSC Treaty, the exchange of information must have
     tended to restrict competition. The Court erred in law in
     holding that it was sufficient if the information might            — Infringement of procedural rights, in particular the prin-
     influence the conduct of undertakings. The possibility that            ciple of ex proprio motu investigation, the rights of defence
     conduct might be influenced cannot per se, however, be                 and the right to procedural fairness: the Court of First
     equated with the tendency to restrict competition.                     Instance misconstrued the scope of the appellant’s pro-
                                                                            cedural rights, its rights of defence and right to procedural
                                                                            fairness, as well as the obligation arising under the principle
(*) See case C-199/99 P, OJ C 204, 17.7.1999, p. 32.
                                                                            of ex proprio motu investigation to establish facts also
                                                                            favourable to the undertakings. Further, the Court erred in
                                                                            law in concluding that the procedural defects in the
                                                                            administrative procedure had been rectified during the
                                                                            judicial proceedings.
                                                                        — Errors in law in regard to the Commission’s failure to
                                                                            comply with essential procedural requirements when it
                                                                            adopted the decision: in view of the fundamental import-
                                                                            ance that the principle of collegiate responsibility should
Appeal brought on 25 May 1999 by Thyssen Stahl AG                           be complied with, the interpretation of inherently contra-
against the judgment delivered on 11 March 1999 by the                      dictory minutes to mean that it could be assumed that the
Court of First Instance of the European Communities                         requisite number of Commission Members had been
(Second Chamber, Extended Composition) in Case                              present constituted an error in law. In so doing, the Court
T-141/94 Thyssen Stahl AG v Commission of the Euro-                         wrongly rejected the complaint made in that connection
                        pean Communities                                    and infringed Articles 5 and 6 of the Commission’s 1993
                                                                            Rules of Procedure. The rejection of the complaint alleging
                                                                            that the version of the decision sent to the appellant was
                       (Case C-194/99 P) (*)                                not authenticated under Article 16 of the Commission’s
                                                                            Rules of Procedure also amounts to an error in law. In this,
                         (1999/C 299/04)                                    the Court of First Instance misconstrued the purpose served
                                                                            by the presumption of validity enjoyed by Community
                                                                            measures; that presumption cannot prevent a decision
An appeal has been brought before the Court of Justice of the               from being set aside in the case where that decision had
European Communities on 25 May 1999 by Thyssen Stahl                        been adopted in breach of formal requirements.
AG, represented by Frank Montag, of Freshfields Deringer,
Bastion Tower, 5 Place du Champs de Mars, B-1050 Brussels,              — Infringement of Article 65(1) and Article 33 of the ECSC
with an address for service in Luxembourg at the Chambers of                Treaty. In the first place, the Court of First Instance, in a
Aloyse May, 31 Grand Rue, against the judgment delivered on                 clear departure from the Commission decision, assumed
11 March 1999 by the Court of First Instance of the European                that the exchange of information constituted a separate
Communities (Second Chamber, Extended Composition) in                       infringement of competition (infringement of Article 33
Case T-141/94 Thysser Stahl AG v Commission of the                          of the ECSC Treaty). Second, the Court infringed Article
European Communities.                                                       65(1) of the ECSC Treaty in so far as it treated the
                                                                            monitoring of orders and deliveries as constituting a
                                                                            separate infringement, without being able to adduce proper
The appellant claims that the Court should:                                 legal reasons as to why the mere exchange of information
                                                                            should be anti-competitive. Finally, the Court failed to
1. Set aside the judgment delivered on 11 March 1999 by the                 appreciate that the exchange of information in question
     Court of First Instance of the European Communities                    was necessary within the context of the monitoring system
     (Second Chamber, Extended Composition) in Case                         implemented by the Commission from 1 July 1988 to 20
     T-141/94 in so far as that judgment fixes the fine imposed             June 1990 pursuant to Decision No 2448/88 and the
     on the appellant at EUR 4 400 000 [paragraph (2)] of the               forward programmes to be set up for that purpose and
     operative part), dismisses the appellant’s action (paragraph           was therefore part of the scheme objectively promoted by
     (3) of the operative part), and orders the appellant to bear           DG III, which the Court ought not to have overlooked
     its own costs and to pay half of the Commission’s costs                when it formed the view that the conduct in question was
     (paragraph (4) of the operative part);                                 anti-competitive.
 ---pagebreak--- 16.10.1999               EN                   Official Journal of the European Communities                                            C 299/5
     In its examination of the pricing agreements in the light of        Pleas in law and main arguments
     Article 65(1) of the ECSC Treaty, the Court also failed
     entirely to take account of the special features of ‘normal
     competition’ within the meaning of Article 65(1) of the             The pleas in law and main arguments are the same as those in
     ECSC Treaty. In this it accepted that DG III could modify           Case C-194/99 P, with the exception of those set out in the
     ‘normal competition’ and, in particular, that it had con-           first indent in the notice relating to that case.
     ceded to undertakings, within the context of cooperation
     with DG III, scope for discussions on price forecasts. Had
                                                                         (*) See case C-199/99 P, OJ C 204, 17.7.1999, p. 32.
     it acted correctly, the Court ought to have examined
     whether the practices in question came within that scope,
     since, if that were so, there would be no anti-competitive
     conduct within the meaning of Article 65(1) of the ECSC
     Treaty.
— Error in law in the quantification of the fine.
— Infringement of Article 6 of the European Convention on
     Human Rights by reason of the unduly lengthy duration               Appeal brought on 25 May 1999 by Siderúrgica Aristrain
     of the proceedings before the Court of First Instance.              Madrid S.L. against the judgment delivered on 11 March
                                                                         1999 by the Court of First Instance of the European
                                                                         Communities (Second Chamber, Extended Composition)
(*) See case C-199/99 P, OJ C 204, 17.7.1999, p. 32.
                                                                         in Case T-156/94 Siderúrgica Aristrain Madrid S.L. v
                                                                                Commission of the European Communities
                                                                                (Case C-196/99 P) (*)
Appeal brought on 25 May 1999 by Krupp Hoesch Stahl                                                 (1999/C 299/06)
AG against the judgment delivered on 11 March 1999 by
the Court of First Instance of the European Communities
(Second Chamber, Extended Composition) in Case                           An appeal has been brought before the Court of Justice of the
T-147/94 Krupp Hoesch Stahl AG v Commission of the                       European Communities on 25 May 1999 by Siderúrgica
                     European Communities                                Aristrain Madrid S.L., represented by Antonio Creus, of the
                                                                         Barcelona Bar, and Natalia Lacalle Mangas, of the Madrid Bar,
                        (Case C-195/99 P) (*)                            with an address for service at the Cuatrecasas Law Chambers,
                                                                         78 Avenue d’Auderghem, B-1040 Brussels, against the judg-
                          (1999/C 299/05)                                ment delivered on 11 March 1999 by the Court of First
                                                                         Instance of the European Communities (Second Chamber,
An appeal has been brought before the Court of Justice of the            Extended Composition) in Case T-156/94 Siderúrgica Aristrain
European Communities on 25 May 1999 by Krupp Hoesch                      Madrid S.L. v Commission of the European Communities.
Stahl AG, represented by Frank Montag, of Freshfields Dering-
er, Bastion Tower, 5 Place du Champs de Mars, B-1050                     The appellant claims that the Court should:
Brussels, with an address for service in Luxembourg at the
Chambers of Aloyse May, 31 Grand Rue, against the judgment
delivered on 11 March 1999 by the Court of First Instance                I.   Annul the judgment delivered on 11 March 1999 by the
of the European Communities (Second Chamber, Extended                         Court of First Instance in Case T-156/94 (1) on the ground
Composition) in Case T-147/94 Krupp Hoesch Stahl AG v                         of all or some of the defects indicated, and draw from
Commission of the European Communities.                                       the annulment of that judgment all legal consequences,
                                                                              whether the Court rules expressly on the substance or
The appellant claims that the Court should:                                   refers the case back to the Court of First Instance, and, in
                                                                              particular:
1. Set aside the judgment delivered on 11 March 1999 by the
     Court of First Instance of the European Communities                      1. Annul the contested judgment in so far as it finds that
     (Second Chamber, Extended Composition) in Case                               the decision does not infringe Community law by
     T-147/94 in so far as that judgment fixes the fine imposed                   reason of misapplication and misinterpretation of
     on the appellant at EUR 9 000 (paragraph (1) of the                          Article 65 of the ECSC Treaty and, accordingly, annul
     operative part), dismisses the appellant’s action (paragraph                 the decision on that ground;
     (2) of the operative part), and orders the appellant to bear
     its own costs and to pay half of the Commission’s costs                  2. Rule on the substance, in so far as it is ready for
     (paragraph (3) of the operative part);                                       judgment, or, if not, refer the case back to the Court of
                                                                                First Instance in order that it may rule on the grounds
2. Annul Articles 1, 3 and 4 of Commission Decision                               set out below, and accordingly annul the decision in
     C(94)321 final of 16 February 1994 relating to a proceed-                    so far as it relates to these grounds or, in the alternative,
     ing pursuant to Article 65 of the ECSC Treaty concerning                     reduce the fine imposed on the appellant:
     agreements and concerted practices engaged in by Euro-
     pean producers of beams;
                                                                                — joint responsibility,
3. Order the Commission to pay the costs of the proceedings
     at first instance and those of the present appeal.                           — failure to state reasons,


title: Case C-151/09: Reference for a preliminary ruling from the Juzgado de lo Social Único de Algeciras (Spain) lodged on 28 April 2009 — Federación de Servicios Públicos de la UGT (UGT-FSP) v Ayuntamiento de la Línea de la Concepción, María del Rosario Vecino Uribe and Others, and the Ministerio Fiscal

text:
               18.7.2009

               EN

               Official Journal of the European Union

               C 167/3

         Reference for a preliminary ruling from the Juzgado de lo Social Único de Algeciras (Spain) lodged on 28 April 2009 — Federación de Servicios Públicos de la UGT (UGT-FSP) v Ayuntamiento de la Línea de la Concepción, María del Rosario Vecino Uribe and Others, and the Ministerio Fiscal
   (Case C-151/09)
   2009/C 167/05
   Language of the case: Spanish

      Referring court

   Juzgado de lo Social Único de Algeciras

      Parties to the main proceedings

      Applicant: Federación de Servicios Públicos de la UGT (UGT-FSP)

      Defendants: Ayuntamiento de la Línea de la Concepción, María del Rosario Vecino Uribe and Others,
   the Ministerio Fiscal

      Question referred

   Is the requirement that autonomy be preserved — referred to in Article 6(1) of Directive 2001/23/EC (1) of 12 March 2001 — met in a factual situation (such as that in the main proceedings) in which, following the recovery of various outsourced public services by a municipal authority, the employees who were part of the staff of the actual undertakings which until then had provided the outsourced municipal services are taken on by that municipal administration and integrated into its staff, but it is those same employees (without exception) who continue to hold the same posts and carry out the same duties as before, in the same places of work and under the instruction of the same immediate superiors (hierarchical superiors), without significant changes in the working conditions, the sole difference being that now their overall managers (above the previous superiors) are the relevant publicly elected officials (councillors or mayor)?

      (1)  On the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ 2001 L 82, p. 16).


title: Case C-440/07 P: Appeal brought on 24 September 2007 by the Commission of the European Communities against the judgment delivered on 11 July 2007 in Case T-351/03 Schneider Electric SA v Commission

text:
               26.1.2008

               EN

               Official Journal of the European Union

               C 22/19

         Appeal brought on 24 September 2007 by the Commission of the European Communities against the judgment delivered on 11 July 2007 in Case T-351/03 Schneider Electric SA v Commission

   (Case C-440/07 P)
   (2008/C 22/38)
   Language of the case: French
   Parties

      Appellant: Commission of the European Communities (represented by: M. Petite and F. Arbault, Agents)

      Other parties to the proceedings: Schneider Electric SA, Federal Republic of Germany, French Republic
   Form of order sought
   The appellant claims that the court should:

               —

               set aside the judgment of the Court of First Instance of the European Communities of 11 July 2007 in Case T-351/03 Schneider Electric SA v Commission;

               —

               order Schneider Electric SA to pay all the Commission's costs.

         Pleas in law and main arguments
   Noting, first of all, that three cumulative conditions are necessary for the Community's non-contractual liability to be incurred, namely, respectively, a wrongful act or omission, that of actual and certain damage and a direct causal link between the wrongful act or omission and the damage, the applicant raises seven grounds in support of its appeal.
   By its first ground of appeal, the Commission claims that, by finding, first, that the Commission ‘omitted’ to formulate the complaint of buttressing of the positions of Schneider and Legrand in its statement of objections of 3 August 2001 and, second, that such formulation presented ‘no particular technical difficulty’, the Court of First Instance disregarded the authority of a judgment delivered but still possibly subject to appeal, made materially incorrect findings, distorted the evidence submitted to its evaluation and failed in its duty to state reasons for its judgments.
   By its second ground of appeal, the Commission maintains that the Court of First Instance erroneously described the facts, made an error of law and failed in its duty to state reasons in holding that the procedural error found in the judgment of 22 October 2002 in Case T-310/01 Schneider Electric v Commission was a ‘sufficiently serious’ breach of a rule of law the object of which was to confer rights on individuals.
   By its third ground of appeal, the Commission alleges that the Court of First Instance made materially mistaken findings, distorted the evidence, erroneously described the facts in question and made an error of law in holding that there was a ‘sufficiently direct causal link’ between the wrongful act or omission and the second head of damage pleaded, namely the anticipated conclusion of Schneider's negotiations with Wendel-KKR on the transfer price of Legrand SA.
   By its fourth ground of appeal, the Commission complains that the Court of First Instance was in breach of its duty to state reasons by reason of a contradiction in the grounds vitiating its reasoning concerning the causal link between the wrongful act or omission and the various heads of damage pleaded.
   By its fifth ground of appeal, the Commission maintains that the Court of First Instance made materially incorrect findings of fact, distorted the evidence and made an error of law in not concluding that Schneider contributed to the entirety of the second head of damage pleaded. That undertaking failed in several respects in its duty to take reasonable care to avoid the damage or mitigate its extent, particularly by failing to bring an interlocutory application in regard to the obligation to transfer Legrand to which it claims to have been made subject and by having chosen to transfer that undertaking at a time when it was not, anyway, subject to any obligation to do so.
   By its sixth ground of appeal, the Commission complains that the Court of First Instance made rulings beyond those sought, misapplied the rules governing the burden of proof and infringed the rights of the defence by identifying a head of damage which was not pleaded by the applicant undertaking.
   By its seventh and last ground of appeal, the Commission alleges that the Court of First Instance made an error of law in awarding Schneider compensatory interest from the accrual of the second head of damage on 10 December 2002.


title: Case C-161/14: Action brought on 4 April 2014 — European Commission v United Kingdom of Great Britain and Northern Ireland

text:
               7.7.2014

               EN

               Official Journal of the European Union

               C 212/14

         Action brought on 4 April 2014 — European Commission v United Kingdom of Great Britain and Northern Ireland
   (Case C-161/14)
   2014/C 212/14
   Language of the case: English

      Parties

      Applicant: European Commission (represented by: C. Soulay, M. Clausen, agents)

      Defendant: United Kingdom of Great Britain and Northern Ireland

      The applicant claims that the Court should:

               (1)

               declare that

                           —

                           by applying a reduced VAT rate to supplies of services of installing ‘energy-saving materials’ and to supplies of ‘energy-saving materials’ by a person who installs those materials in residential accommodation, to the extent that those supplies cannot be considered as ‘provision, construction, renovation and alteration of housing, as part of a social policy’ for the purposes of Category (10) of Annex III to the VAT Directive (1),

                           —

                           by applying a reduced VAT rate to supplies of services of installing ‘energy-saving materials’ and to supplies of ‘energy-saving materials’ by a person who installs those materials in residential accommodation, to the extent that those supplies fall outside the purview of renovation and repairing of private dwellings for the purposes of Category (10a) of Annex III to the VAT Directive,

                           —

                           by applying a reduced VAT rate to supplies of services of installing ‘energy-saving materials’ and to supplies of ‘energy-saving materials’ by a person who installs those materials in residential accommodation, to the extent that those supplies, even falling in the purview of renovation and repairing of private dwellings for the purposes of Category (10a) of Annex III to the VAT Directive, include materials which account for a significant amount of the value of the services supplied, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 98, read in conjunction with Annex III, of the VAT Directive;

               (2)

               order United Kingdom of Great Britain and Northern Ireland to pay the costs.

      Pleas in law and main arguments

   Under article 96 of the VAT directive, the standard rate of VAT fixed by each Member State, subject to a minimum rate of 15 %, is applicable to all supplies of goods and services. A rate other than the standard rate may be applied only in so far as that is permitted by other provisions of the directive. Article 98 provides that Member States may apply one or two reduced rates to the supplies of goods and services listed in Annex III to the directive.
   The Commission considers that the system of reduced rates applying to the supplies of energy-saving materials and to the installation thereof, laid down in the VAT Act 1994, section 29A, as specified in Schedule 7A to that Act, exceeds the possibilities offered to Member States by Categories (10) and (10a) of Annex III to the VAT Directive, which respectively cover ‘provision, construction, renovation and alteration of housing, as part of a social policy’ and ‘renovation and repairing of private dwellings, excluding materials which account for a significant part of the value of the service supplied’.
   The UK reduced rate scheme as described in Schedule 7A, Part 2, Group 2 to the VAT Act 1994 cannot be directly linked to housing matters as part of a social policy, and it therefore goes beyond the scope allowed by category (10) of Annex III to the VAT Directive.
   Schedule 7A, Part 2, Group 2 to the VAT Act 1994, by applying a reduced rate to the supply of services of installing ‘energy-saving materials’ and to the supply of ‘energy-saving materials’ by the person installing them in residential accommodation, where those supplies include the provision, construction and alteration of private dwellings and without regard to those materials' proportional value to the total value of the service supplied, goes beyond the requirement laid down in Category (10a), namely that a reduced rate may only be applied to renovation and repairing of private dwellings, excluding materials which account for a significant part of the value of the service supplied.

      (1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

      OJ L 347, p. 1


title: Case T-254/05: Judgment of the Court of First Instance (Third Chamber) of  20 September 2007 — Fachvereinigung Mineralfaserindustrie v Commission (State Aid — Measures to promote the use of insulation material from renewable raw materials — Decision declaring aid compatible with the common market — Preliminary examination — Action for annulment — Professional association — Meaning of party concerned in Article 88(2) EC — Pleas in law on validity of decision — Inadmissibility)

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/47

         Judgment of the Court of First Instance (Third Chamber) of 20 September 2007 — Fachvereinigung Mineralfaserindustrie v Commission
   (Case T-254/05) (1)

   (State Aid - Measures to promote the use of insulation material from renewable raw materials - Decision declaring aid compatible with the common market - Preliminary examination - Action for annulment - Professional association - Meaning of ‘party concerned’ in Article 88(2) EC - Pleas in law on validity of decision - Inadmissibility)
   (2007/C 269/84)
   Language of the case: German
   Parties

      Applicant: Fachvereinigung Mineralfaserindustrie eV Deutsche Gruppe der Eurima — European Insulation Manufacturers Association (Frankfurt am Main, Germany) (represented by: T. Schmidt -Kötters, D. Uwer and K. Najork)

      Defendant: Commission of the European Communities (represented by: V. Kreuschitz)

      Intervener in support of the defendant: Federal Republic of Germany (represented by M. Lumma and C. Schulze-Bahr, agents)
   Re:
   Action for annulment of Commission Decision C(2005) 379 of 11 February 2005 relating to State Aid N 260b/2004 (Germany — Prolongation of the scheme to promote the use of insulation material from renewable raw materials)
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action as inadmissible;

               2.

               Orders Fachvereinigung Mineralfaserindustrie eV Deutsche Gruppe der Eurima — European Insulation Manufacturers Association to bear its own costs and to pay the costs of the Commission;

               3.

               Orders the Federal Republic of Germany to bear its own costs.

      (1)  OJ C 229 of 17.9.2005.


title: Action brought on 22 February 1995 by Asland SA against the Commission of the European Communities (Case T-55/95)

text:
 13 . 5 . 95         LJN.                   Official Journal of the European Communities                                No C 119/ 19
Pleas in law and main arguments adduced in support:                         Freedoms. In the view of the applicant, the procedure
                                                                            followed by the Commission in competition law is one
The applicant contends that the findings against the                        which may lead to the imposition of sanctions and, as
applicant of infringements of Article 85 are erroneous, being               such, should have the procedural guarantees which are
based on a materially incorrect appreciation of the facts and               characteristic of criminal proceedings, as is recognized
vitiated by manifest error of assessment.                                   in Member States where the administrative law
                                                                            provides for the imposition of penalties . None the less,
Further, or in the alternative, the applicant contends that                 in Community law the Commission is the body which
the Commissioin failed to observe essential procedural                      both investigates and makes decisions, with the power
requirements in that:                                                       to impose coercive sanctions on undertakings which
— the reasoning to support the findings of infringement                     are the subject of proceedings . Therefore the procedure
     against the applicant is inadequate, and/or                            lacks objectivity, contrary to Article 6 of the
                                                                            abovementioned Convention .
— the applicant was deprived of a proper opportunity to be
     heard in so far as certain findings of infringement in the         II. Infringement of rights of the defence. The applicant
     Decision were not set out in the Statement of Objections               maintains that its rights were infringed in the course of
      served on the applicant in the administrative                         the administrative procedure inasmuch as:
     proceedings.
                                                                            1 , it was not given access to the full file;
                                                                            2, the objections raised against the applicant were not
                                                                                sufficiently specified;
Action brought on 22 February 1995 by Asland SA against
        the Commission of the European Communities                          3 , the Decision contains new objections which are
                          Case T-55/95 )                                        different to those raised against the applicant in the
                                                                                Statement of Objections .
                           ( 95/C 119/41 )
                                                                       III. Insufficient statement of reasons. The applicant states
                (Language of the case: Spanish)                             that the Commission has failed to set out clearly and
                                                                            coherently the considerations of fact and law on which
An action against the Commission of the European                            it has based its Decision, so that neither the applicant
Communities was brought before the Court of First                           nor the Court of First Instance is in a position to be
Instance of the European Communities on 22 February                         cognizant of the elements of its reasoning.
1995 by Asland SA, whose registered office is Barcelona
( Spain), represented by Antonio Creus Carreras, of the                IV. Misapplication of Article 85 ( 1 ) to the applicant's
Barcelona Bar, Antonio Hierro Hernandez Mora , of the                       conduct.
Madrid Bar, and Xavier Ruiz Calzado, of the Barcelona Bar,
with an address for service in Brussels at 78 Avenue
                                                                            1 . First, the applicant considers that, in so far as it is
d'Auderghem.                                                                    concerned, the Commission has not determined
                                                                                the facts correctly, since it is alleged to have
The applicant claims that the Court should:                                     participated in the ' Cembureau Agreement' solely
                                                                                on the basis of its proven attendance at a meeting
— annul in whole or in part Commission Decision ( 94 )
     3077 final of 30 November 1994,                                            prior to that setting up the 'European Task Force '
                                                                                and on the unfounded assumption that it also
— in the alternative, in the event that the Decision is upheld                  participated in the subsequent meeting of that
     in whole or in part, cancel the fine imposed on Asland SA                  group .
     in Article 9,
                                                                            2 . Secondly, the applicant states that, in so far as it is
— in the further alternative, in the event that the Decision is                 concerned, all the legal assessments of the
     upheld in whole or in part, substantially reduce the fine                  Commission of the unproven facts are unfounded,
     imposed on Asland SA in Article 9,                                         since it has not been proven that, by attending the
                                                                                meeting in Rome in May 1986 the applicant had
— order the Commission to pay to Asland SA the whole of                         infringed Article 85 ( 1 ) of the EC Treaty.
     the costs of the proceedings, including the costs (with
     interest) of the security lodged for payment of the whole          V. In the alternative, in so far as concerns the fine, the
     or part of the fine .                                                  applicant pleads:
Pleas in law and main arguments adduced in support:                         1 , inadequacy of the reasons given for the fine;
The applicant relies on the following grounds in support of
its application:                                                            2 , misapplication of Article 15 (2 ) of Regulation
                                                                                No 17/62 to the conduct of the applicant;
  I. Infringement of Article 6 of the European Convention
       for the Protection of Human Rights and Fundamental                   3 , breach of the principle of equal treatment;
 ---pagebreak--- No C 119/20              EN                 Official Journal of the European Communities                                    13 . 5 . 95
        4. breach of the principle of equitable treatment of the                practices and monopolies, in which it is understood
             undertakings with respect to the ecu exchange rate                 but cannot be proven by the applicant, that the
             to be applied for the fines .                                      following paragraph appears (which does not
                                                                                appear in the adopted Decision ):
                                                                                'Account should be taken of the Greek producers '
                                                                                argument that they were constrained by
Action brought on 23 February 1995 by Heracles General                          circumstances to sign the contracts with certain
Cement Company against the Commission of the European                           European producers on the sale of cement and
                             Communities                                        clinker. Consequently, the Commission considers
                           (Case T-57/95 )                                      that it should not impose fines on Titan and
                                                                                Heracles in respect of the agreements and concerted
                            ( 95/C 119/42 )                                     practices relating to the purchases of Greek cement
                                                                                and clinker referred to to in point 56 .'
                  (Language of tbe case: English)
                                                                           and
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 23 February by                 — order that the Commission pay the applicant's costs.
Heracles General Cement Company, represented by
Mr Kostas Loukopoulos, Mr Sebastian Farr and Mr Ciaran
Walker with an address for service in Luxembourg at the                Pleas in law and main arguments adduced in support:
chambers of Me Jos Stoffel, 8 , Rue Willy Goergen, L-1636
Luxembourg.                                                            1 . The Commission's Decisions was adopted in breach of a
                                                                           number of essential procedural requirements, in
The applicant claims that the Court should :                               particular, the right to a fair hearing.
— review under Article 173 of the EC Treaty the legality of
    the Commission Decision of 30 November 1994 ( J ) and              2 . The applicant was denied an adequate opportunity to
    declare it void or annul it under Article 174 of the EC                make its views on the objections raised against it known
    Treaty, on the grounds of infringement of the EC Treaty                to the Commission. Neither the applicant's response to
    and the rules of law relating to its application and of                the Statement of Objections nor those minutes of the
    infringement of essential procedural requirements,                     oral hearing which relate to interventions made by the
                                                                           applicant was translated from the Greek original within
— cancel under Article 172 of the EC Treaty the fine                       the Commission. Accordingly, the issues raised by the
    imposed on the applicant, or to significantly reduce                   applicant in these documents were not properly taken
    it:                                                                    into account.
      ( i ) in the event that the Court decides that the
                                                                       3 . The Commission's Decision was adopted in breach of
            application under Article 173 is well-founded, the
                                                                           Article 190 of the EC Treaty.The European Commission
            fine should be cancelled;
                                                                           has failed to provide adequate reasoning to support its
    (ii) if, on the other hand, the Court were to uphold the               central conclusions, in particular, that:
            Decision, in whole or in part, the applicant submits
            that the fine should nevertheless be substantially             — the various arrangements to which the applicant was
            reduced,                                                           a party amounted to a 'single and continuous
                                                                               agreement',
— order, under Articles 65 and 66 of the Rules of
    Procedure of the Court, the Commission to produce all
    internal notes, memoranda and draft documents                          — the applicant 'participated indirectly' in the
    prepared by Members of the Commission or Officials or                      Cembureau agreement,
    the Commission, minutes of the Commission's meetings
    and opinions of the Advisory Committee on restrictive                  — the purpose of the contracts in which the applicant
    practices and monopolies, meetings relating to:                            was specifically involved (Holderbank, Lafarge,
                                                                               CBR, as mentioned above ) was to prevent direct
      (i ) the dissemination of the applicant's defence, as set                sales by the applicant on the European market.
            out in its response to the Statement of Objections
            and minutes of the oral hearing, within the
            Commission and the Advisory Committee on                   4. The Commission's Decision was adopted in breach of
            restrictive practices and monopolies, in languages             the fundamental Community principle of non
            other than the original Greek version;                         discrimination, in that the Commission has failed to
                                                                           assess the applicant's circumstances individually,
    ( ii ) the calculation of the amount of the applicant's fine,          despite the fact that the applicant's circumstances were
            in particular the Commission's draft Decisions                 radically different to those of the other addressees of the
            presented to the Advisory Committee on restrictive             Decision.


title: Case T-23/03: Action brought on 29 January 2003 by C.A.S. Succhi di Frutta against the Commission of the European Communities

text:
5.4.2003               EN                          Official Journal of the European Union                                              C 83/23
Action brought on 29 January 2003 by C.A.S. Succhi di                      In the contested decision, the Commission, inter alia, takes the
Frutta against the Commission of the European Communi-                     view that 32 A.TR.1 certificates were falsified. The Commission
                                 ties                                      refused the applicant’s request for remission of
                                                                           ITL 3 296 190 371.
                          (Case T-23/03)
                                                                           In support of its claim for annulment of the part of the
                          (2003/C 83/51)                                   Commission’s decision refusing remission, the applicant sub-
                                                                           mits that the Commission infringed its right of access to the
                                                                           file, inasmuch as, in the course of providing access to the file,
                   (Language of the case: German)                          the Commission failed to disclose and produce to the applicant
                                                                           all the documents relevant to the case.
An action against the Commission of the European Communi-                  The applicant further submits that the Commission failed to
ties was brought before the Court of First Instance of the                 comply with its remission or repayment obligation under
European Communities on 29 January 2003 by C.A.S. Succhi
                                                                           Article 239 of the Customs Code in respect of the 32 allegedly
di Frutta, Verona, Italy, represented by D. Ehle, lawyer.                  falsified A.TR.1 certificates, since those 32 certificates too were
                                                                           issued and registered and handed over to the exporter when
                                                                           clearing the goods for export with the knowledge and cooper-
The applicant claims that the Court should:                                ation of the competent Turkish customs authority, which was
                                                                           aware of the possibility that the goods might not be of Turkish
—     annul the Commission’s decision of 18 October 2002                   origin.
      (REC 10/01), in so far as the Commission refused to remit
      or repay the import duties amounting to
      ITL 3 296 190 371 collected by way of post-clearance                 Moreover, the Commission infringed Article 220(2)(b) of the
      recovery in respect of 32 imports covered by 32 specified
                                                                           Customs Code since the Turkish customs authorities knew or
      A.TR.1 certificates;
                                                                           could reasonably have known that the deliveries for which the
                                                                           32 A.TR 1 certificates were issued, were not of Turkish origin,
—     order the Commission to pay the costs.                               whereas, when importing the products, the applicant acted in
                                                                           good faith and was unaware of the misconduct of the Turkish
                                                                           customs authority.
Pleas in law and main arguments
                                                                           (1 ) Council Regulation (EEC) No 4115/86 of 22 December 1986 on
                                                                                imports into the Community of agricultural products originating
Regulation (EEC) No 4115/86 ( 1) abolished, with certain                        in Turkey (OJ 1986 L 380, p. 16).
exceptions, the customs duties imposed on the goods originat-
ing in Turkey listed in Annex II to the EEC Treaty.
Between 5 April 1995 and 20 November 1997, the applicant,
an Italian company which, inter alia, processes imported fruit
juice concentrates, put on the market for free circulation apple
and pear juice concentrates declared to originate in Turkey.
According to the applicant, the shipments were accompanied                 Action brought on 28 January 2003 by Marco de Stefano
by proper documents, including the A.TR.1 movement of                         against the Commission of the European Communities
goods certificates. In 1998, the customs authorities in Ravenna
presented the applicant with a list of A.TR.1 certificates. On
the basis of examinations of the authenticity and regularity of                                      (Case T-25/03)
the certificates carried out at the offices of the Turkish customs
authority, it was alleged that the applicant had imported apple
juice concentrates with falsified A.TR.1 certificates. At the                                        (2003/C 83/52)
same time, the applicant was required to pay import duties by
way of post-clearance recovery.
                                                                                (Language of the case: French)
The applicant lodged an objection to the customs assessment
notices issued by the competent customs authority in Ravenna.
At the same time, it applied for remission under                           An action against the Commission of the European Communi-
Article 220(2)(b) and Article 239 of the Customs Code. The                 ties was brought before the Court of First Instance of the
Italian tax authorities submitted the decision on the remission            European Communities on 28 January 2003 by Marco de
of the import duties collected by way of post-clearance                    Stefano, residing in Brussels, represented by Georges Vander-
recovery to the Commission.                                                sanden and Guy Verbrugge, lawyers.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 19 February 1998 in Case C-8/97: Commission of the European Communities v. Hellenic Republic (Failure by a Member State to fulfil obligations - Directive 90/434/EEC - Failure to transpose)

text:
11.4.98               EN                  Official Journal of the European Communities                                      C 113/5
               JUDGMENT OF THE COURT                                                JUDGMENT OF THE COURT
                       (Fifth Chamber)                                                      (Sixth Chamber)
                     of 19 February 1998                                                  of 19 February 1998
in Case C-318/96 (reference for a preliminary ruling                         in Case C-8/97: Commission of the European
from the Verwaltungsgerichtshof): SPAR Österreichische                            Communities v. Hellenic Republic (1)
 Warenhandels AG v. Finanzlandesdirektion für Salzburg (1)
                                                                     (Failure by a Member State to fulfil obligations Ð
(Article 33 of the sixth Directive Ð Turnover taxes Ð                       Directive 90/434/EEC Ð Failure to transpose)
Levy towards the functioning of chambers of commerce
                      (Kammerumlage))                                                        (98/C 113/12)
                         (98/C 113/11)
                                                                                (Language of the case: Greek)
               (Language of the case: German)
                                                                       (Provisional translation; the definitive translation will be
                                                                               published in the European Court Reports)
  (Provisional translation; the definitive translation will be
         published in the European Court Reports)
                                                                     In Case C-8/97: Commission of the European
                                                                     Communities (Agent: Dimitrios Gouloussis) v. Hellenic
In Case C-318/96: reference to the Court pursuant to                 Republic (Agents: Paraskevi Skandolou and Nana
Article 177 of the EC Treaty from the Austrian                       Daphniou) Ð application for a declaration that, by failing
Verwaltungsgerichtshof (Administrative Court) for a                  to adopt or, in the alternative, to communicate to the
preliminary ruling in the proceedings pending before that            Commission within the prescribed period the laws,
court between SPAR Österreichische Warenhandels AG                   regulations and administrative provisions necessary to
and Finanzlandesdirektion für Salzburg Ð on the                      comply with Council Directive 90/434/EEC of 23 July
interpretation of Articles 17 and 33 of the sixth Council            1990 on the common system of taxation applicable to
Directive 77/388/EEC of 17 May 1977 on the                           mergers, divisions, transfers of assets and exchanges of
harmonisation of the laws of the Member States relating              shares concerning companies of different Member
to turnover taxes Ð Common system of value-added tax:                States (2), the Hellenic Republic has failed to fulfil its
uniform basis of assessment (2) Ð the Court (Fifth                   obligations under the EC Treaty and that Directive Ð the
Chamber), composed of: C. Gulmann, President of the                  Court (Sixth Chamber), composed of: H. Ragnemalm,
Chamber, D. A. O. Edward, J.-P. Puissochet (Rapporteur),             President of the Chamber, R. Schintgen, P. J. G. Kapteyn,
P. Jann and L. Sevón, Judges; S. Alber, Advocate-General;            J. L. Murray and G. Hirsch (Rapporteur), Judges; P. LeÂger,
L. Hewlett, Administrator, for the Registrar, has given a            Advocate-General; R. Grass, Registrar, has given a
judgment on 19 February 1998, in which it has ruled:                 judgment on 19 February 1998, in which it:
The sixth Council Directive 77/388/EEC of 17 May 1977                1. declares that, by failing to adopt, within the period
on the harmonisation of the laws of the Member States                     prescribed, the laws, regulations and administrative
relating to turnover taxes Ð common system of value-                      provisions necessary to comply with Council Directive
added tax: uniform basis of assessment, and in particular                 90/434/EEC of 23 July 1990 on the common system
Articles 17(2) and 33 thereof, does not preclude a levy                   of taxation applicable to mergers, divisions, transfers
such as the Kammerumlage, provided for in Article 57(1)                   of assets and exchanges of shares concerning
to (6) of the Handelskammergesetz, which is payable, by                   companies of different Member States, the Hellenic
members of chambers of commerce whose turnover                            Republic has failed to fulfil its obligations under
exceeds a certain amount, is calculated in principle on the               Article 12(1) therof;
basis of the VAT included in the price of the goods and
services supplied to them, and is not deductible from the
VAT payable by them on the commercial transactions
which they carry out.                                                2. orders the Hellenic Republic to pay the costs.
(1) OJ C 336, 9.11.1996.                                             (1) OJ C 94, 22.3.1997.
(2) OJ L 145, 13.6.1977, p. 1.                                       (2) OJ L 225, 20.8.1990, p. 1.